USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1798
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT F. CARROZZA,
Defendant, Appellant.
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No. 92-1868
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND J. PATRIARCA,
Defendant, Appellant.
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No. 92-2213
UNITED STATES OF AMERICA,
Appellant,
v.
RAYMOND J. PATRIARCA,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Martin G. Weinberg with whom Oteri, Weinberg & Lawson, John F.
___________________ __________________________ _______
Cicilline, Kimberly Homan and Sheketoff & Homan were on briefs for
_________ ______________ __________________
Raymond J. Patriarca.
James L. Sultan with whom Rankin & Sultan was on brief for
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Robert F. Carrozza.
James D. Herbert, Assistant United States Attorney, with whom
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A. John Pappalardo, United States Attorney, Jeffrey Auerhahn,
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Assistant United States Attorney, and Gregg L. Sullivan, Assistant
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United States Attorney, were on briefs for the United States.
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September 16, 1993
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CAMPBELL, Senior Circuit Judge. Raymond J.
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Patriarca pled guilty to one count of conspiring to violate
the Racketeering Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. 1962(d), one count of violating RICO,
18 U.S.C. 1962(c), four counts of interstate travel in aid
of racketeering, 18 U.S.C. 1952 (the "Travel Act"), and one
count of conspiring to violate the Travel Act.
He was sentenced by the United States District
Court for the District of Massachusetts to a prison term of
97 months, three years of supervised release, a $50,000 fine,
$122,344 costs of incarceration, and $3,954 costs of
supervision. Pursuant to 18 U.S.C. 3742(b), the government
appeals from the district court's determination that the
relevant conduct for sentencing purposes in this RICO case is
limited to just the predicate Travel Act violations charged
against Patriarca and conduct relating directly to those
charged predicates. Patriarca appeals from the district
court's upward departure under U.S.S.G. 4A1.3 and from the
district court's imposition of the costs of incarceration and
supervision under U.S.S.G. 5E1.2(i).
Robert F. Carrozza appeals from a 228-month
sentence imposed by the district court after Carrozza pleaded
guilty to 49 counts of racketeering-related offenses.
Carrozza argues that the district court's decision to
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"assume" that his base offense level should be adjusted
upwards for his role in the offense constituted plain error.
I. Patriarca's Sentence
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A. Background
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Count One of the indictment charged Patriarca and
seven codefendants with participation in a criminal
conspiracy to violate the RICO statute. Count Two charged
the same defendants with a substantive violation of the RICO
statute. The remaining 63 counts charged related
racketeering acts involving different defendants, including
in Count 30 a conspiracy to violate the Travel Act.
The RICO charges alleged that the Patriarca Family
had committed illegal activities over a period of 14 years.
They identified the defendants as members of a nationwide
criminal organization known as La Cosa Nostra, and described
Patriarca's role, after July 1984, as the boss and ultimate
supervisor of the Patriarca Family. The RICO counts alleged
that the Patriarca Family, named as the RICO enterprise,
acted in conformity with the rules of La Cosa Nostra,
including the requirement that members commit murder at the
direction of their superiors. It was further alleged that
members of the Patriarca Family were required to obey their
superiors and commit criminal acts at their direction,
including murder. Members of the Patriarca Family were
allegedlyrequiredto
sharetheirillegalprofitswiththeirsuperiors.
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The indictment alleged that the Patriarca Family
was in the business of extortion, narcotics trafficking,
loansharking, gambling, and murder. The indictment charged
the commission of a total of 68 separate, predicate acts,
most of them by defendants other than Patriarca. The
predicate racketeering acts in which Patriarca was personally
named were five violations of (and conspiracy to violate) the
Travel Act, four of which were also charged as substantive
violations against Patriarca in Counts 31, 36, 38 and 39.
Prior to Patriarca's entry of a guilty plea, the
government informed the court and Patriarca that it would
seek to include specific acts of relevant conduct, pursuant
to U.S.S.G. 1B1.3, in determining Patriarca's base offense
level, and would further seek upward departures pursuant to
U.S.S.G. 4A1.3 and 5K2.0. As an example of relevant
conduct, the government then cited Patriarca's involvement in
the narcotics trafficking of Patriarca's associate, Salvatore
Michael Caruana. As an example of conduct justifying an
upward departure, the government cited the murder of Vincent
James Limoli, which was charged against one of Patriarca's
codefendants.
On December 3, 1991, Patriarca pled guilty without
having entered into any agreement with the government. In
the sentencing proceedings that ensued, the government asked
the court to consider seven instances of relevant conduct,
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along with the charged conduct, in determining Patriarca's
base offense level for his RICO offenses. These instances
were (1) Patriarca's involvement in the drug trafficking of
Caruana; (2) Patriarca's efforts to harbor Caruana as a
fugitive; (3) the murder of Limoli; (4) the murder of
Theodore Berns, which was committed by Caruana purportedly
because Berns was involved with Caruana's wife; (5) the
narcotics activities charged against codefendant Robert
Carrozza; (6) Patriarca's alleged authorization of an attempt
to murder Vincent Ferrara; and (7) the harboring of La Cosa
Nostra member, Alphonse Persico, while he was a fugitive from
justice. Of these acts, only the Limoli murder and
Carrozza's drug trafficking had been mentioned in the
indictment, these two acts having been charged as predicate
acts against Patriarca's codefendants (not Patriarca
himself). The government acknowledges that Patriarca had
direct personal involvement only in the Caruana drug
trafficking and the harboring of Caruana as a fugitive. But
it also argues that all seven activities were reasonably
foreseeable to Patriarca and were committed during, and in
furtherance of, the RICO conspiracy after Patriarca had
joined it as its chief.
The government asserted that holding Patriarca
responsible for the Limoli or the Berns murder would increase
his base offense level to 43, but that this level should then
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be reduced by three levels because Patriarca's role was
minimal or minor under U.S.S.G. 3B1.2. The guideline range
for an offense level of 40 and Criminal History Category I is
292-365 months in prison. The government recommended a
sentence of 292 months.
After numerous evidentiary hearings, the district
court announced its decision to sentence Patriarca to 97
months imprisonment. This was an upward departure from the
court's calculated guideline range of 63 to 78 months.1 The
court concluded that relevant conduct in a RICO case was, as
a matter of law, limited to the specific predicate acts
charged against the defendant (here, as to Patriarca, the
Travel Act violations) and conduct relating to the charged
predicates. The court observed that the base offense level
for RICO is the greater of 19 or "the offense level
applicable to the underlying racketeering activity."
U.S.S.G. 2E1.1(a). Because 2E1.1 specifies more than one
base offense level, the court determined that 1B1.3
requires the proper base offense to be ascertained by the
inclusion of relevant conduct. The core question, in the
court's view, was whether "underlying racketeering activity"
within the meaning of 2E1.1(a)(2) referred only to the
predicate racketeering acts charged against Patriarca
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1. The district court's extensive sentencing memorandum is
published at 807 F. Supp. 165 (D. Mass. 1992).
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himself, or whether it also embraced other racketeering acts
including those of Patriarca's RICO coconspirators committed
in the course of the RICO conspiracy.
In opting for the former construction, the court
relied upon three principles it felt were key: (1) the
guidelines are primarily a "charge offense" system; (2) the
guidelines are generally intended to duplicate nationwide
past practices; and (3) the guidelines are intended to
establish a sentencing system which is both administratively
workable and fair. Regarding the first, the court noted that
none of the seven instances of conduct cited by the
government had been charged against Patriarca personally in
the indictment. As to the second reason, the court noted
that there are no reported pre-guideline RICO cases in which
a defendant was sentenced and punished for an uncharged
murder. With respect to the third, the court stated that the
government's position was administratively unwieldy: weeks or
months of evidentiary hearings could be required to decide if
a defendant committed the uncharged relevant conduct.
Finally, the court was concerned about the procedural
fairness of punishing a defendant for an uncharged murder
without indictment, trial by jury, and proof beyond a
reasonable doubt.
The court reasoned that adoption of the
government's position would raise serious constitutional
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questions which the district court's interpretation would
avoid. Treating the Limoli or Berns murder as relevant
conduct would, the court believed, have the effect of raising
the maximum penalty for the RICO violations from 20 years to
life imprisonment. The RICO penalty provision, 18 U.S.C.
1963(a), provides for a maximum sentence of 20 years unless
"the RICO violation is based on racketeering activity for
which the maximum penalty includes life imprisonment," in
which case the maximum sentence is life. The guideline
penalty for murder, which is a level 43 offense, is life
imprisonment. Because the district court, unlike the
government, thought a three-level reduction for a minor or
minimal role in the offense was unlikely, the court reasoned
that if Patriarca was held responsible for the Limoli or
Berns murders, his probable sentence would be life
imprisonment. In the court's view, therefore, treating the
murders as relevant conduct (thereby increasing the guideline
range from 63-78 months to life) would violate the due
process clause of the constitution by permitting the relevant
conduct determination "to be a tail which wags the dog of the
substantive offense." McMillan v. Pennsylvania, 477 U.S. 79,
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88 (1986).
The government appeals from this determination.
B. The Government's Appeal: Relevant Conduct
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"The legal determination as to the proper interplay
among related guidelines is subject to plenary review."
United States v. Schultz, 970 F.2d 960, 962 (1st Cir. 1992),
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cert. denied, 113 S. Ct. 1020 (1993). Therefore, we review
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de novo the district court's application of the relevant
conduct guideline, U.S.S.G. 1B1.3, to the RICO guideline,
U.S.S.G. 2E1.1. We conclude that the district court erred
when it limited relevant conduct to conduct in furtherance of
the predicate acts charged against Patriarca. We hold that
relevant conduct in a RICO case includes all conduct
reasonably foreseeable to the particular defendant in
furtherance of the RICO enterprise to which he belongs.
We agree with the government that the language of
the relevant conduct section, 1B1.32, and its application
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2. The relevant conduct guideline, in pertinent part,
provides the following:
Unless otherwise specified, (i) the base offense
level where the guideline specifies more than one
base offense level, (ii) specific offense
characteristics and (iii) cross references in
Chapter Two, and (iv) adjustments in Chapter Three,
shall be determined on the basis of the following:
(1)(A) all acts and omissions committed, aided,
abetted, counseled, commanded, induced,
procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken
criminal activity (a criminal plan,
scheme, endeavor, or enterprise
undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable
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to the RICO guideline, 2E1.1, are clear, and hence must be
applied. Section 1B1.3 calls for determining the following
guideline elements on the basis of relevant conduct as
defined: (1) the base offense level, where the guideline
specifies more than one base offense level, (2) specific
offense characteristics, (3) cross references in Chapter Two,
and (4) adjustments in Chapter 3. The RICO guideline,
2E1.13, specifies more than one base offense level,
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acts and omissions of others in
furtherance of the jointly undertaken
criminal activity,
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense . . . .
U.S.S.G. 1B1.3(a)(1).
The relevant conduct guideline quoted here is the
amended version of 1B1.3, which became effective on
November 1, 1992, after Patriarca was sentenced. Because the
1992 amendments to 1B1.3 only clarify the previous version
of the guideline, we may refer to the later version. See
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1B1.11(b)(2) ("the court shall consider subsequent
amendments, to the extent that such amendments are clarifying
rather than substantive changes").
3. The RICO guideline provides the following:
2E1.1. Unlawful Conduct Relating to Racketeer
2E1.1. Unlawful Conduct Relating to Racketeer
______________________________________________
Influenced and Corrupt Organizations
Influenced and Corrupt Organizations
____________________________________
(a) Base Offense Level (Apply the greater):
(1) 19; or
19
(2) the offense level applicable to the
underlying racketeering activity.
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including a cross reference to "the offense level applicable
to the underlying racketeering activity." See United States
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v. Masters, 978 F.2d 281, 284 (7th Cir. 1992) (reference to
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"underlying racketeering activity" in 2E1.1(a)(2) is a
cross reference), cert. denied, 113 S. Ct. 2333 (1993);
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U.S.S.G. 1B1.5, application note 1 (cross references may be
general, such as "to the guideline for the 'underlying
offense'"). Therefore, 1B1.3 requires the base offense
level for 2E1.1 to be determined on the basis of relevant
conduct as that term is described in 1B1.3(a)(1).
Section 1B1.3 states that "in the case of a jointly
undertaken criminal activity," relevant conduct includes "all
reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity."
U.S.S.G. 1B1.3(a)(1)(B). This is often referred to as the
accomplice attribution element of relevant conduct. "Jointly
undertaken criminal activity" is defined in 1B1.3(a)(1)(B)
as "a criminal plan, scheme, endeavor, or enterprise
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undertaken by the defendant in concert with others, whether
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or not charged as a conspiracy." Id. (emphasis added).
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Here, the RICO enterprise the Patriarca Family was a
"jointly undertaken criminal activity." Thus, Patriarca is
potentially liable for the foreseeable criminal acts of
____________________
U.S.S.G. 2E1.1.
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others in furtherance of that enterprise even though he did
not personally participate in them.
The application notes expand on the role of
relevant conduct in the case of criminal activity undertaken
in concert with others. We quote from application note 2 to
1B1.3 at length because of the guidance it provides to
courts in determining when a defendant is responsible for the
conduct of others under the accomplice attribution element of
the relevant conduct guideline:
In the case of a jointly undertaken criminal activity,
subsection (a)(1)(B) provides that a defendant is
accountable for the conduct (acts and omissions) of
others that was both:
(i) in furtherance of the jointly undertaken
criminal activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
Because a count may be worded broadly and include
the conduct of many participants over a period of
time, the scope of the criminal activity jointly
undertaken by the defendant (the "jointly
undertaken criminal activity") is not necessarily
the same as the scope of the entire conspiracy, and
hence relevant conduct is not necessarily the same
for every participant. In order to determine the
defendant's accountability for the conduct of
others under subsection (a)(1)(B), the court must
first determine the scope of the criminal activity
the particular defendant agreed to jointly
undertake (i.e., the scope of the specific conduct
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and objectives embraced by the defendant's
agreement). The conduct of others that was both in
furtherance of, and reasonably foreseeable in
connection with, the criminal activity jointly
undertaken by the defendant is relevant conduct
under this provision. The conduct of others that
was not in furtherance of the criminal activity
jointly undertaken by the defendant, or was not
reasonably foreseeable in connection with that
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criminal activity, is not relevant conduct under
this provision.
In determining the scope of the criminal activity
that the particular defendant agreed to jointly
undertake (i.e., the scope of the specific conduct
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and objectives embraced by the defendant's
agreement), the court may consider any explicit
agreement or implicit agreement fairly inferred
from the conduct of the defendant and others.
Note that the criminal activity that the defendant
agreed to jointly undertake, and the reasonably
foreseeable conduct of others in furtherance of
that criminal activity, are not necessarily
identical. For example, two defendants agree to
commit a robbery and, during the course of that
robbery, the first defendant assaults and injures a
victim. The second defendant is accountable for
the assault and injury to the victim (even if the
second defendant had not agreed to the assault and
had cautioned the first defendant to be careful not
to hurt anyone) because the assaultive conduct was
in furtherance of the jointly undertaken criminal
activity (the robbery) and was reasonably
foreseeable in connection with that criminal
activity (given the nature of the offense).
U.S.S.G. 1B1.3, application note 2.
Application note 2 reflects recognition that the
accomplice attribution provision of 1B1.3 operates to hold
a defendant responsible for the conduct of others even though
"a count may be worded broadly and include the conduct of
many participants over a period of time." So as to keep the
criminal responsibility within bounds, 1B1.3 requires
sentencing courts to ascertain on an individual basis the
scope of the criminal activity that the particular defendant
agreed jointly to undertake. U.S.S.G. 1B1.3, application
note 2. To do this, the court may consider any "explicit
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agreement or implicit agreement fairly inferred from the
conduct of the defendant and others." Id.; see United
___ ___ ______
States v. Innamorati, No. 91-1896, slip op. at 66 (1st Cir.
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June 17, 1993) (members of drug distribution conspiracy may
be held accountable at sentencing for different quantities of
narcotics, "depending on the circumstances of each
defendant's involvement"); United States v. Collado, 975 F.2d
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985, 992 (3d Cir. 1992) ("the crucial factor in accomplice
attribution is the extent of the defendant's involvement in
the conspiracy"); Wilkens & Steer, Relevant Conduct: The
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Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.
_________________________________________________
Rev. 495, 511 (1990) ("liability might be justified for those
who are at the top directing and controlling the entire
operation") (quoting 2 W. LaFave & A. Scott, Substantive
Criminal Law 6.8, at 155 (1986)).
On remand here, therefore, the district court must
determine (1) the scope of the joint criminal activity
explicitly or implicitly agreed to by Patriarca jointly with
others; (2) whether the criminal acts proffered as relevant
conduct were in furtherance of this jointly undertaken
criminal activity; and (3) whether the proffered acts were
reasonably foreseeable in connection with that criminal
activity. These determinations will fix the relevant conduct
under 1B1.3 for purposes of calculating the offense level
under 2E1.1. Such determinations are, of course, all
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inherently fact-bound. See, e.g., Innamorati, slip op. at
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66.
Rather than applying 1B1.3 to 2E1.1 in the
straightforward manner discussed above, the district court
limited relevant conduct to only those predicate acts that
were charged against Patriarca personally namely, the
Travel Act violations. In doing so, the district court
improperly treated the term "underlying racketeering
activity" in 2E1.1(a)(2) as if it "otherwise specified"
that relevant conduct should not apply to each "offense of
conviction" (including the RICO conspiracy count and the
substantive RICO count) and instead should apply only to the
predicate Travel Act violations. See U.S.S.G. 1B1.3(a)
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("Unless otherwise specified, . . . cross references . . .
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shall be determined on the basis of . . . all reasonably
foreseeable acts . . . that occurred during the commission of
the offense of conviction . . . ") (emphasis added). This
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was error. "Subsection (a) [of 1B1.3] establishes a rule
of construction by specifying, in the absence of more
explicit instructions in the context of a specific guideline,
the range of conduct that is relevant to determining the
applicable offense level . . . ." U.S.S.G. 1B1.3,
Background. The background commentary to 1B1.3 further
makes clear that "[c]onduct that is not formally charged or
is not an element of the offense of conviction may enter into
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the determination of the applicable guideline range."
Section 2E1.1 specifically the term "underlying
racketeering activity" contains no explicit instructions
displacing the general rule in 1B1.3 that relevant conduct
includes uncharged conduct. In a RICO case, there is no
justification for limiting "underlying racketeering activity"
just to predicate acts specifically charged against one
defendant.4
We, therefore, agree with the government that the
term "underlying racketeering activity" in 2E1.1(a)(2)
means simply any act, whether or not charged against
defendant personally, that qualifies as a RICO predicate act
under 18 U.S.C. 1961(1)5 and is otherwise relevant conduct
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4. Aside from its departure from the relevant conduct
guideline, the district court's interpretation could raise
other problems. For example, in some circuits the government
need not allege specific predicate acts when it charges a
defendant with RICO conspiracy. See United States v.
___ ______________
Glecier, 923 F.2d 496, 501 (7th Cir.), cert. denied, 112 S.
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Ct. 54 (1991); United States v. Phillips, 874 F.2d 123, 127-
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28 (3d Cir. 1989). A court sentencing a defendant in such a
case would be put in a difficult position if forced to apply
literally the district court's analysis. Because such cases
do not identify and charge the "underlying racketeering
activity," a court following the district court's approach
might be limited to the base offense level of 19 as specified
in 2E1.1(a)(1), even though the real offense conduct
underlying the conspiracy is considerably more serious than
other level 19 offenses.
5. Section 1961(1) defines "racketeering activity" to
include, inter alia, "any act or threat involving murder,
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kidnaping, gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, or dealing in narcotic or other
dangerous drugs, which is chargeable under State law and
punishable by imprisonment for more than one year; . . .
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under 1B1.3. Because the reference to "underlying
racketeering activity" is a cross reference, 1B1.3 comes
into play and defines "the range of conduct that is relevant
. . . ." See U.S.S.G. 1B1.3, Background. It follows that
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the acts of relevant conduct proffered by the government, all
of which are racketeering acts that could have been charged
as predicate offenses, come under the heading of "relevant
conduct" for sentencing Patriarca on the RICO counts of
conviction, provided they otherwise meet the accomplice
attribution standards of 1B1.3(a)(1)(B).
To avoid this conclusion, Patriarca cites to
application notes 1 and 5 to U.S.S.G. 1B1.2. He argues
that these application notes show that the term "underlying
racketeering activity" should be limited to the specific
predicate acts charged against him. We think that neither
application note is applicable here.
Application note 1 to U.S.S.G. 1B1.2 states the
following:
This section provides the basic rules for
determining the guidelines applicable to
the offense conduct under Chapter Two
(Offense Conduct). As a general rule,
the court is to use the guideline section
from Chapter Two most applicable to the
offense of conviction. The Statutory
Index (Appendix A) provides a listing to
assist in this determination. When a
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[and] any act which is indictable under . . . title 18 . . .
section 1512 (relating to tampering with a witness, victim,
or an informant) . . . ."
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particular statute proscribes only a
single type of criminal conduct, the
offense of conviction and the conduct
proscribed by the statute will coincide,
and there will be only one offense
guideline referenced. When a particular
statute proscribes a variety of conduct
that might constitute the subject of
different offense guidelines, the court
will determine which guideline section
applies based upon the nature of the
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offense conduct charged in the count of
_________________________________________
which the defendant was convicted.
________________________________________
(Emphasis ours.)
Patriarca relies on the emphasized portion for the
proposition that relevant conduct pertaining to composite
crimes, like RICO, must be limited to conduct charged in the
indictment. It is clear, however, from the full text of the
application note, that the note is meant to guide courts in
the initial selection of the applicable guideline in Chapter
Two, not to limit cross references within a particular
guideline. There is no question here that the applicable
guideline for RICO convictions is 2E1.1. Thus, application
note 1 to 1B1.2 provides no support for Patriarca's
argument.
Application note 5 to 1B1.2 is equally immaterial
to the application of relevant conduct to 2E1.1.
Application note 5 relates specifically to 1B1.2(d), which
states that: "A conviction on a count charging a conspiracy
to commit more than one offense shall be treated as if the
defendant had been convicted on a separate count of
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conspiracy for each offense that the defendant conspired to
commit." Application note 5 in turn provides the following:
Particular care must be taken in applying
subsection (d) because there are cases in which the
verdict or plea does not establish which offense(s)
was the object of the conspiracy. In such cases,
subsection (d) should only be applied with respect
to an object offense alleged in the conspiracy
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count if the court, were it sitting as a trier of
_____
fact, would convict the defendant of conspiring to
commit that object offense. Note, however, if the
object offenses specified in the conspiracy count
would be grouped together under 3D1.2(d) (e.g., a
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conspiracy to steal three government checks) it is
not necessary to engage in the foregoing analysis,
because 1B1.3(a)(2) governs consideration of the
defendant's conduct.
U.S.S.G. 1B1.2, application note 5 (emphasis added).
In arguing that 1B1.2(d) and application note 5
limit relevant conduct in composite cases, like RICO cases,
to conduct "alleged" in the indictment as predicate acts,
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Patriarca notes similar language in the application notes to
2E1.1 and the multiple count rules. Application note 1 to
2E1.1 states that "[w]here there is more than one
underlying offense, treat each underlying offense as if
contained in a separate count of conviction . . . ."
Similarly, the introductory commentary to the multiple count
rules provides that "[s]ome offenses, e.g., racketeering and
____
conspiracy, may be 'composite' in that they involve a pattern
of conduct or scheme involving multiple underlying offenses.
The rules in this Part are to be used to determine the
offense level for such composite offenses from the offense
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level for the underlying offenses." Application note 8 to
3D1.2 refers specifically back to 1B1.2(d): "A defendant
may be convicted of conspiring to commit several substantive
offenses and also of committing one or more of the
substantive offenses. In such cases, treat the conspiracy
count as if it were several counts, each charging conspiracy
to commit one of the substantive offenses. See 1B1.2(d)
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and accompanying commentary." U.S.S.G. 3D1.2, application
___________________________
note 8 (emphasis added).
On the basis of this commentary, Patriarca contends
that the only way to apply the multiple count section of the
guidelines to a RICO conviction is to use the directions for
the more commonly applied conspiracy, and hence the rule of
1B1.2(d).6 We disagree. First, the definition of "offense"
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6. The training staff at the Sentencing Commission
apparently agrees. In the latest issue of the Sentencing
Commission's Most Frequently Asked Questions About the
______________________________________________
Sentencing Guidelines, Vol. VI, Dec. 1, 1992, Question 30
______________________
asks: "The defendant was convicted of RICO (18 U.S.C.
1962). How is the alternative base offense level at
2E1.1(a)(2) determined?" The answer provides the following:
Application note 1 to 2E1.1 instructs that where
there is more than one underlying offense (i.e.,
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predicate act), each underlying offense should be
treated as if contained in a separate count of
conviction for the purposes of subsection (a)(2).
(See 1B1.2(d) and Application Note 5.) Each of
___
the underlying offenses, whether or not charged in
substantive counts of conviction, are treated as if
they were substantive counts of conviction, or
"pseudo counts."
Id. The training staff's informational booklet states that
___
"[t]he information does not necessarily represent the
-21-
contained in the application notes to U.S.S.G. 1B1.1 is not
limited to charged offenses. Instead, "offense" is defined
to mean "the offense of conviction and all relevant conduct
_________________________
under 1B1.3 (Relevant Conduct) unless a different meaning
_________________________________
is specified or is otherwise clear from the context."
U.S.S.G. 1B1.1, application note 1(l) (emphasis added). As
stated previously, 2E1.1 does not specify a different
meaning; therefore, there is no reason to interpret
"underlying offense" to exclude uncharged conduct.
Furthermore, although applying 1B1.2(d) to RICO
convictions has some superficial appeal, there would be
insurmountable obstacles to its practical application.
First, by its own terms, 1B1.2(d) is limited to counts
"charging a conspiracy." Therefore, it is difficult to see
_____________________
how 1B1.2(d) could apply to a substantive RICO violation
(as opposed to a RICO conspiracy). Even overlooking this
language, it would be impossible under application note 5 for
a court to determine whether it "would convict the defendant
of conspiring to commit" an underlying offense in situations
__________
where the defendant is charged with a substantive RICO
violation and the underlying offense is not a conspiracy.
____________________
official position of the Commission, should not be considered
definitive, and is not binding upon the Commission, the
court, or the parties in any case." Because 1B1.2(d), by
its own terms, is not applicable to RICO convictions, we do
not follow the training staff's suggestion.
-22-
Thus, 1B1.2(d) is inapplicable to nonconspiracy offenses
such as a substantive RICO violation.
There are problems with applying 1B1.2(d) to RICO
conspiracies as well. It seems clear from the plain text of
1B1.2(d), the application notes, and the official
commentary7 that 1B1.2(d) was enacted to deal with
multiple object conspiracies charged in a single count. A
RICO conspiracy, however, is considered a single object
____________________
7. Official comments made by the Sentencing Commission at
the time that it enacted 1B1.2(d) clarify the purpose of
Application note 5:
[Application note 5] is provided to address cases
in which the jury's verdict does not specify how
many or which offenses were the object of the
conspiracy of which the defendant was convicted.
Compare U.S. v. Johnson, 713 F.2d 633, 645-46 (11th
_______ ____ _______
Cir. 1983) (conviction stands if there is
sufficient proof with respect to any one of the
objectives), with U.S. v. Tarnopol, 561 F.2d 466
____ ________
(3d Cir. 1977) (failure of proof with respect to
any one of the objectives renders the conspiracy
conviction invalid). In order to maintain
consistency with other 1B1.2(a) determinations,
this decision should be governed by a reasonable
doubt standard. A higher standard of proof should
govern the creation of what is, in effect, a new
count of conviction for the purposes of Chapter
Three, Part D (Multiple Counts). Because the
guidelines do not explicitly establish standards of
proof, the proposed new application note calls upon
the court to determine which offense(s) was the
object of the conspiracy as if it were "sitting as
a trier of fact." The foregoing determination is
not required, however, in the case of offenses that
are grouped together under 3D1.2(d) (e.g., fraud
____
and theft) because 1B1.3(a)(2) governs
consideration of the defendant's conduct.
U.S.S.G. App. C., para. 75, p.29 (Nov. 1, 1989).
-23-
conspiracy with that object being the violation of RICO.
United States v. Ashman, 979 F.2d 469, 485 (7th Cir. 1992)
______________ ______
("The goal of a RICO conspiracy is a violation of RICO.")
(quoting United States v. Neapolitan, 791 F.2d 489, 496 (7th
_____________ __________
Cir.), cert. denied, 479 U.S. 940 (1986)), petition for cert.
____________ __________________
filed sub nom. Barcal v. United States, 61 U.S.L.W. 3857
_______________ ______ ______________
(U.S. April 6, 1993) (No. 92-1804). In enacting RICO,
Congress intended that "'a series of agreements that under
pre-RICO law would constitute multiple conspiracies could
under RICO be tried as a single enterprise conspiracy' if the
defendants have agreed to commit a substantive RICO
offense."8 United States v. Riccobene, 709 F.2d 214, 224-25
_____________ _________
(3d Cir.) (quoting United States v. Sutherland, 656 F.2d
______________ __________
1181, 1192 (5th Cir. 1981), cert. denied, 455 U.S. 949 (1982)
____________
(internal citation omitted)), cert. denied sub nom.
__________________________
Ciancaglini v. United States, 464 U.S. 849 (1983).
___________ _____________
Application notes 1 and 5 to 1B1.2 are not,
therefore, material to determining whether relevant conduct
____________________
8. Rather than merely requiring a defendant to agree to
commit a substantive RICO offense, this circuit follows the
minority rule, which requires that a defendant agreed to
commit, or in fact committed, two or more specified predicate
crimes as part of the defendant's participation in the
affairs of the enterprise in order to convict the defendant
for a RICO conspiracy. United States v. Boylan, 898 F.2d
_____________ ______
230, 241 (1st Cir.), cert. denied, 498 U.S. 849 (1990);
____________
United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981),
_____________ ______
cert. denied, 460 U.S. 1011 (1983). This minority rule,
_____________
however, does not affect the general premise that a RICO
conspiracy is a single object conspiracy.
-24-
must be limited to predicate acts charged against a
defendant. Instead, 1B1.3 determines the range of conduct
that is relevant to cross references such as the term
"underlying racketeering activity" in 2E1.1(a)(2), and the
background commentary to 1B1.3 makes clear that "[c]onduct
that is not formally charged . . . may enter into the
determination of the applicable guideline sentencing range."
Because the application of 1B1.3 to 2E1.1 is
straightforward and unambiguous, the district court erred in
resorting to the general principles underlying the guidelines
and the general rule of construction that "courts should
construe statutes to avoid decision as to their
constitutionality." See, e.g., United States v. Monsanto,
___ ____ _____________ ________
491 U.S. 600, 611 (1989). "[C]ourts should strive to apply
the guidelines as written, giving full force and effect to
the Sentencing Commission's interpretive commentary and
application notes." United States v. Zapata, No. 93-1116,
______________ ______
slip op. at 4 (1st Cir. July 19, 1993); accord Stinson v.
______ _______
United States, 113 S. Ct. 1913, 1915 (1993); United States v.
_____________ _____________
Brewster, No. 93-1046, slip op. at 7 (1st Cir. July 28,
________
1993). Absent specific provision in 2E1.1 that "underlying
racketeering activity" includes only charged predicate acts,
we see no principled basis to read such a limitation into the
provision.
-25-
Even were the application of relevant conduct to
2E1.1 less clear than it is, we would have trouble accepting
the three principles cited by the district court as the
rationale for limiting relevant conduct to the predicate acts
actually charged against a defendant. The district court
felt that "the Sentencing Guidelines are closer to a 'charge
offense' system than a 'real offense' system of punishment."
Patriarca, 807 F. Supp. at 190; U.S.S.G. Ch. 1, Pt. A, 4(a),
_________
p. 5. In the court's view, the reason the government did not
charge the conduct at issue in this appeal as predicate acts
in the indictment is because the government had insufficient
evidence to sustain a conviction for this conduct. 807 F.
Supp. at 191. Because conduct "which the prosecutor can
prove in court" is supposed to "impose[] a natural limit upon
the prosecutor's ability to increase a defendant's sentence,"
U.S.S.G. Ch.1, Pt. A, 4(a), p.5, the court thought that it
would be improper for a sentencing court to increase a
defendant's sentence on the basis of uncharged predicate
acts.
Similar arguments have been rejected by this court
and virtually every other circuit court to have addressed the
issue. See, e.g., United States v. Mocciola, 891 F.2d 13,
___ ____ ______________ ________
16-17 (1st Cir. 1989); United States v. Galloway, 976 F.2d
______________ ________
414, 424 n.6 (8th Cir. 1992) (collecting cases), cert.
_____
denied, 113 S. Ct. 1420 (1993). While the district court is
______
-26-
correct that "for the most part, the court will determine the
applicable guideline by looking to the charge of which the
_____________________
offender was convicted," United States v. Blanco, 888 F.2d
_____________ ______
907, 910 (1st Cir. 1989), real offense principles enter into
the punishment prescribed in the guidelines through the
relevant conduct guideline, 1B1.3. Breyer, The Federal
___________
Sentencing Guidelines and the Key Compromises Upon Which They
_____________________________________________________________
Rest, 17 Hofstra L. Rev. 1, 11-12 (1988). Relevant conduct
____
increases a defendant's sentence, sometimes very
significantly, despite the fact that it was not charged in an
indictment, e.g., Blanco, 888 F.2d at 910, and even despite
____ ______
the fact that a jury may have acquitted the defendant for
that precise conduct. E.g., Mocciola, 891 F.2d at 16-17;
____ ________
United States v. Rumney, 867 F.2d 714, 719 (1st Cir.)
______________ ______
("traditional sentencing factors need not be pleaded and
proved at trial") (quoting United States v. Brewer, 853 F.2d
_____________ ______
1319, 1326 (6th Cir.), cert. denied, 488 U.S. 946 (1988)),
____________
cert. denied, 491 U.S. 908 (1989). This is because
_____________
sentencing factors, including the applicability of relevant
conduct, need only be proven by a preponderance of the
evidence, not beyond a reasonable doubt. Mocciola, 891 F.2d
________
at 16-17; Galloway, 976 F.2d at 424 n.6. As noted below, in
________
pre-guideline cases courts likewise took into account untried
criminal conduct when exercising sentencing discretion. The
fact that the government has not charged and proven beyond a
-27-
reasonable doubt the conduct now asserted as relevant conduct
does not prevent the increase in sentence resulting from the
relevant conduct guideline. We see no special reason to
deviate from this principle when dealing with a RICO
conviction.
Nor are we as convinced as the district court that
sentencing Patriarca on the basis of uncharged relevant
conduct might be so unfair as to raise due process concerns.
The district court assumed that if Patriarca was held
responsible for either the Limoli or Berns murder, Patriarca
would face a potential life sentence under the guidelines and
the RICO penalty provision. We believe that the district
court was mistaken in this assumption. The RICO statute sets
the maximum prison sentence at 20 years unless "the violation
_________
is based on a racketeering activity for which the maximum
penalty includes life imprisonment." 18 U.S.C. 1963(a)
(emphasis added). We agree with the government that the
statutory maximum sentence must be determined by the conduct
alleged within the four corners of the indictment.
Otherwise, a defendant would not know at the time of his
arraignment or change of plea what his maximum possible
sentence would be on the charged offenses. The charged
_______
conduct, if proven beyond a reasonable doubt, constitutes the
"violation" of which a defendant is convicted. Patriarca's
_________
charged conduct included no acts such as would result in a
-28-
life sentence. The predicate acts charged in the indictment
were all violations of the Travel Act, which does not carry a
possible life sentence. Therefore, while for sentencing
purposes within the 20-year maximum Patriarca is liable for
uncharged as well as charged relevant conduct, his maximum
penalty is fixed at twenty years for each of the RICO
counts.9 The relevant conduct determination here affects
only where, within that statutory range, Patriarca should be
____________________________
sentenced.
We are also unpersuaded by the district court's
concern that sentencing Patriarca on the basis of uncharged
predicate acts would be "inconsistent with the Sentencing
____________________
9. At oral argument, Patriarca contended that if the
district court determines that Patriarca's base offense level
on the RICO counts is 43 (i.e., if the court decides that
____
Patriarca is responsible for a murder and that a minimal role
adjustment would be improper), then the court in applying
U.S.S.G. 5G1.2(d) should impose consecutive sentences,
which could total up to 65 years (20 years for each of the
two RICO counts and 5 years for each of the five Travel Act
counts). See United States v. Masters, 978 F.2d 281, 284
___ _____________ _______
(7th Cir. 1992) (affirming district court sentencing RICO
defendant to consecutive maximum sentences of 20 years on
each count, for a total of 40 years, in order to come as
close as possible to life imprisonment prescribed for level
43 offenses), cert. denied, 113 S. Ct. 2333 (1993). At least
____________
one member of the panel believes that serious constitutional
concerns may arise if the defendant ultimately receives the
equivalent of a life sentence on the ground of his connection
with a murder for which he was never indicted, tried or
convicted by a jury. However, the district court may yet
ultimately sentence Patriarca to considerably less than 65
years. Because the district court has not yet sentenced
Patriarca under the relevant conduct guideline as we
interpret it today, any decision as to the constitutional
implications, if any, of a 65-year sentence would be
premature.
-29-
Commission's intention to set up a system which is not
administratively unwieldy." Patriarca, 807 F. Supp. at 192.
_________
While it is true that considerations of administrative
efficiency as well as procedural fairness prompted the
Commission to require sentencing courts "to determine the
applicable guideline by looking to the charge of which the
____________________
offender was convicted," it is also clear that the Commission
intended real offense principles to apply to determine the
applicability of various adjustments, including cross
references. See Blanco, 888 F.2d at 910. The fact that
___ ______
application of real offense principles may burden a
sentencing court with additional fact finding is no reason to
ignore the Commission's compromise between "real offense" and
"charge offense" sentencing. See id. at 911. Sentencing a
___ ___
RICO defendant on the basis of uncharged predicate acts may
not, indeed, prove to be impracticable. Drug conspirators
are frequently sentenced on the basis of drug transactions
committed by coconspirators. In both situations, the court
must determine the scope of the criminal activity agreed to
by the defendant, the reasonable foreseeability of the
conduct proffered as relevant conduct, and whether the
relevant conduct was in furtherance of the jointly undertaken
activity. To be sure, the wide range of crimes covered by
RICO may inject new complexities, but, if so, the remedy lies
-30-
with the Sentencing Commission. The courts are not empowered
to rewrite the relevant conduct guideline.10
Finally, the district court's observation that
there are apparently no reported pre-guideline cases in which
a RICO defendant was sentenced on the basis of an uncharged
murder is not dispositive. There could, of course, have been
such cases that went unreported or unappealed. Sentences
were not usually the subject of published opinions prior to
the guidelines. And courts often used material information
from many sources in exercising their discretion to set a
sentence within the permissible, often very wide, statutory
range. See, e.g., Roberts v. United States, 445 U.S. 552,
___ ____ _______ _____________
556 (1980); Williams v. New York, 337 U.S. 241, 250-51
________ _________
(1949); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.)
_____________ ___
("Any circumstance that aids the sentencing court in deriving
a more complete and true picture regarding the convicted
person's background, history, or behavior is properly
considered. For that reason, . . . , other crimes for which
the defendant was neither tried nor convicted, and crimes
charged that resulted in acquittal may be used by the
____________________
10. We recognize that determining uncharged relevant conduct
could sometimes impose tremendous additional burdens on a
court. Relief may be afforded, however, in some instances by
the fact that district courts need not make findings as to
acts proffered as relevant conduct if the findings will not
reflect the offense level. See U.S.S.G. 3D1.4
___
(instructions on determining the combined offense level).
-31-
sentencing court in determining sentence") (citation
omitted), cert. denied, 484 U.S. 956 (1987).
____________
We conclude that the principles put forward by the
district court provide no adequate reason for limiting
relevant conduct to charged predicate acts in RICO cases.
Because the district court incorrectly interpreted the
guidelines, it did not reach a host of other arguments raised
by Patriarca in an attempt to avoid the straightforward
application of the relevant conduct guideline, 1B1.3, to
2E1.1. These arguments include: whether due process and the
Confrontation Clause require additional procedures, such as a
higher standard of proof than preponderance of the evidence,
in order to hold Patriarca responsible for the proffered
relevant conduct; whether due process requires notice of
proffered relevant conduct not otherwise disclosed in the
indictment prior to the entry of a defendant's plea of
guilty; whether sentencing Patriarca for murders that
occurred prior to the effective date of the guidelines
violates the Ex Post Facto Clause, even though the RICO
offense extended beyond that date; whether the relevant
conduct guideline exceeds the Sentencing Commission's
statutory authority; and whether the government should be
estopped from arguing that Patriarca is responsible for the
proffered relevant conduct. Several of these arguments have
been expressly rejected by this circuit and others. See,
___
-32-
e.g., United States v. Brewster, No. 93-1046, slip op. at 5
____ _____________ ________
(1st Cir. July 28, 1993) ("Absent bad faith . . . the
critical time for disclosure of sentence-related information
is not prior to the taking of a plea, but prior to
sentencing."); United States v. David, 940 F.2d 722, 739 (1st
_____________ _____
Cir. 1991) ("It is well established that the guidelines apply
to a defendant whose offense begins before the guidelines'
effective date and continues after the effective date."),
cert. denied, 112 S. Ct. 2301 (1992); Galloway, 976 F.2d at
____________ ________
421-22 (rejecting argument that relevant conduct provision is
not authorized by the Sentencing Reform Act). However, it is
not necessary for us to decide these issues in the first
instance. On remand, the district court should consider, and
where appropriate, decide those issues that Patriarca chooses
to assert again.
In a last ditch effort to avoid resentencing,
Patriarca contends that the legal issue of how relevant
conduct is applied to the RICO guideline has been effectively
mooted by the district court's findings concerning the
proffered acts of relevant conduct. Patriarca asserts that
the in the course of determining whether an upward departure
was warranted pursuant to 5K2.0 and 4A1.3, the court
found, as a matter of fact, that the government had not
established his criminal liability for five of the seven
relevant conduct allegations the Limoli and Berns
-33-
homicides, the Carrozza drug dealing, the Ferrara "hit," or
the harboring of Alphonse Persico.11
This contention has no merit. The district court
expressly stated that because it found that relevant conduct
must be limited to charged predicate acts, it was not
deciding "whether the crimes at issue with regard to relevant
conduct were within the scope of the defendant's conspiracy
and/or reasonably foreseeable consequences of it."
Patriarca, 807 F. Supp. at 196. In discussing the purported
_________
conduct in its upward departure analysis, the district court
merely stated that it was not persuaded that Patriarca knew
of, or personally participated in, these offenses. However,
a defendant can be accountable for the acts of his
coconspirators under 1B1.3 without having been personally
involved. The standard is whether the acts of coconspirators
were in furtherance of the jointly undertaken activity and
were reasonably foreseeable to the defendant. The seven acts
____________________
11. As to the remaining two proffered acts of relevant
conduct Caruana's marijuana importation and fugitive
status , Patriarca contends that the court's finding that
such conduct warranted a criminal history upward departure
and the fact that the indictment mentions drug trafficking in
general, rather than particularly alleging marijuana
importation, preclude consideration of this conduct as
relevant conduct. Neither contention has merit. The court
treated the Caruana allegations under the upward departure
guideline, 4A1.3, only because the court thought this
uncharged conduct could not qualify as relevant conduct under
1B1.3. Moreover, we think the indictment's generic
allegation of narcotics trafficking is sufficient to permit
the court to consider marijuana importation as relevant
conduct.
-34-
proffered as relevant conduct must be reexamined in light of
this standard.
C. Patriarca's Appeal
__________________
Patriarca appeals from the district court's upward
departure under U.S.S.G. 4A1.3 and from the district
court's imposition of the costs of incarceration and
supervision under U.S.S.G. 5E1.2(i). Our holding that the
district court must resentence Patriarca on the basis of his
relevant conduct moots the issue of the propriety of the
court's upward departure. The district court departed
upwards under 4A1.3 on the basis of its finding that the
government had proved by a preponderance of the evidence that
Patriarca had "aided and abetted drug crimes committed by
Salvatore Michael Caruana" from 1981 to 1983. Patriarca, 807
_________
F. Supp. at 170. Because on remand the court will decide if
the Caruana conspiracy is relevant conduct for RICO
sentencing purposes, its utilization as a basis for upward
departure need not be considered here, and is vacated.
For similar reasons, we must reject Patriarca's
challenge to his cost-of-imprisonment fine. As part of his
sentence, the district court ordered Patriarca to pay a fine
of $50,000 pursuant to U.S.S.G. 5E1.2(c), plus $122,344 for
the cost of his imprisonment, and $3,954 for the cost of his
supervision. Patriarca, 807 F. Supp. at 210. The later
_________
-35-
portion of the fine was assessed pursuant to U.S.S.G.
5E1.2(i), which states the following:
Notwithstanding the provisions of subsection (c)
[the minimum-maximum fine table] of this section,
but subject to the provisions of subsection (f)
[the defendant's ability to pay] herein, the court
shall impose an additional fine amount that is at
least sufficient to pay the costs to the government
of any imprisonment, probation, or supervised
release ordered.
U.S.S.G. 5E1.2(i). Patriarca contends that the Sentencing
Reform Act, 18 U.S.C. 3553(a), does not authorize
imposition of a fine to recompense the government for the
cost of incarceration or supervised release, and 5E1.2(i)
is therefore invalid.
The few circuit courts to have addressed this
question agree that the Sentencing Reform Act does not
authorize the assessment of a fine solely to pay for the
costs of a defendant's imprisonment. United States v.
______________
Spiropoulos, 976 F.2d 155, 165-69 (3d Cir. 1992); United
___________ ______
States v. Hagmann, 950 F.2d 175, 187 n.29 (5th Cir. 1991),
______ _______
cert. denied, 113 S. Ct. 108 (1992). They disagree, however,
____________
as to whether 5E1.2(i) can be justified on other grounds.
Compare United States v. Turner, No. 93-1148, 1993 U.S. App.
_______ _____________ ______
LEXIS 17472 (7th Cir. July 14, 1993) (costs of confinement
reflect seriousness of the crime and increase deterrence) and
___
Hagmann, 950 F.2d at 187 ("the uniform practice of fining
_______
criminals on the basis of their individualistic terms of
imprisonment an indicator of the actual harm each has
-36-
inflicted upon society is a rational means to assist the
victims of crime collectively") with Spiropoulos, 976 F.2d at
____ ___________
168 ("The cost of imprisoning a defendant has little, if
anything, to do with the amount that the defendant has harmed
his or her victim(s), and is therefore questionable as an
appropriate method of restitution."); see United States v.
___ ______________
Doyan, 909 F.2d 412, 416 (10th Cir. 1990) ("Whether the
_____
purpose of the contested fine is to punish, deter, or to
spare the taxpayers a substantial expense that has been
generated by an intentional criminal act, we cannot say that
Guideline 5E1.2(i) as applied here bears no rational
relation to the legitimate governmental interest in criminal
justice."). The government here argues that 5E1.2(i) is
merely a means of achieving the clearly authorized purpose of
punishing a defendant based on the seriousness of his or her
offense.
We do not find it appropriate to answer this
question at the present time. First, Patriarca did not
object to his cost-of-imprisonment fine at the time of
sentencing. Hence, the district court had no reason to focus
on the issue, and we lack the benefit of its considered
views. Absent plain error, we normally will not consider an
issue raised for the first time on appeal. See United States
___ _____________
v. Newman, 982 F.2d 665, 672 (1st Cir. 1992), petition for
______ ____________
cert. filed, 61 U.S.L.W. 3751 (U.S. April 22, 1993) (No. 92-
____________
-37-
1703); United States v. Haggert, 980 F.2d 8, 11 (1st Cir.
_____________ _______
1992); United States v. Mondello, 927 F.2d 1463, 1468 (9th
_____________ ________
Cir. 1991) (refusing to consider argument not raised below
that the fine provisions of the Guidelines are contrary to
statutory authorization). Because the fine issue is one
which has divided our sister circuits, we cannot see that the
district court's alleged error in assessing the 5E1.2(i)
fine was a "plain" one within the meaning of Fed. R. Crim. P.
52(b). See United States v. Olano, 113 S. Ct. 1770, 1777
___ ______________ _____
(1993).
In addition, our decision that Patriarca must be
resentenced taking into account uncharged relevant conduct
requires that we also vacate the fine portion of Patriarca's
sentence. Should the district court on remand determine that
Patriarca must be sentenced at a higher base offense level,
his minimum and maximum fine range under 5E1.2(c) will
likewise increase. Moreover, Patriarca's cost of
imprisonment necessarily depends upon the length of his
confinement. On remand, Patriarca can argue that a cost-of-
imprisonment fine under 5E1.2(i) is inconsistent with the
Sentencing Reform Act. Should the district court reject the
argument and Patriarca again appeal from the fine, that will
be the appropriate time for this court to decide the
question. Presently, however, because we must vacate the
fine and because Patriarca did not raise the issue below
-38-
hence failing to bring the claimed error to the district
court's attention for focused consideration we find it
inappropriate to decide whether 5E1.2(i) is valid.
II. Carrozza's Sentence
___________________
Defendant/appellant Robert F. Carrozza appeals from
a judgment of conviction and a 228-month sentence imposed by
the district court, after Carrozza pleaded guilty to 49
counts of racketeering-related offenses, including violations
of the RICO statute, extortion, kidnapping, loansharking,
narcotics distribution, gambling, obstruction of justice, and
intimidation of a witness. Carrozza argues that the district
court's decision to "assume" that Carrozza's base offense
level should be adjusted upwards for his role in the offense
constituted plain error.
After extensive plea negotiations, Carrozza and
four of his codefendants entered into plea agreements with
the government. Pursuant to Fed. R. Crim. P. 11(e)(1)(C),
Carrozza and the government agreed that a specific sentence
of 228 months was "the appropriate disposition of the case,"
constituting "a justifiable departure within the meaning of
6B1.2(c)(2) of the United States Sentencing Guidelines."
Both parties agree on appeal that this "justifiable
departure" was understood to have been a downward departure.
-39-
Apart from the agreed sentence, Carrozza received
two additional benefits in exchange for his plea of guilty.
First, the government promised not to prosecute Carrozza for
his alleged involvement in the murder of William Grasso and
the attempted murder of Francis Salemme, Sr. Second, the
government promised that Carrozza would not be subpoenaed to
testify in any federal grand jury investigation in the
District of Massachusetts relating to the activities of the
PatriarcaFamily occurringbefore thedate of theplea agreement.
The plea agreements for all five defendants were
made expressly contingent upon the district court's
acceptance of the pleas of guilty from each defendant.
According to the government, the interdependency of the plea
agreements reflected the government's major purpose in
entering the agreements eliminating the need for any
trial, which the parties estimated would take from six months
to a year or more. Because removing some but not all of the
defendants would not significantly reduce the time necessary
to try the case, the government bargained for, and obtained,
the option to withdraw all five plea agreements if any of the
defendants moved successfully to withdraw his plea.
The district court conditionally accepted the
guilty pleas pending consideration of the presentence reports
("PSR"). The preliminary PSR for Carrozza was completed on
April 3, 1992. The preliminary PSR calculated his applicable
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guideline range, based on an offense level of 33 and a
criminal history category of IV, to be 188-235 months, and
therefore concluded that the agreed sentence of 228 months
was consistent with the guidelines. The PSR determined that
there were no factors warranting departure.
On April 9, the government filed its objections to
this PSR, complaining that some of the PSR's calculations of
Carrozza's offense level were too high and some were too low.
The key objection made by the government was that the PSR
should have made an upward adjustment pursuant to U.S.S.G.
3B1.1(a) for Carrozza's role as an organizer or leader in
several of the offenses charged. The government calculated
the applicable guideline range to be 235-293 months, based
upon an offense level of 35 and a criminal history category
of IV. Finally, the government argued that there were
justifiable factors to support a downward departure.
Carrozza filed several specific objections to the
PSR on April 17. Although Carrozza did not discuss the
particulars of his own calculation of the applicable
guideline range, he did argue that "a downward departure to
the agreed upon sentence" was warranted. Carrozza did not
dispute the government's calculations as to his role in the
offenses charged.
The Addendum to the PSR was completed on April 23.
The Addendum accepted some of the government's objections
-41-
calling for a downward revision in the offense level
calculations, but rejected the government's role in the
offense objection because the government had not provided
"sufficient information . . . in the details of the
particular episodes to delineate the individual roles of the
__________
defendant within those episodes." The Addendum recalculated
_____
the total offense level to be 31, yielding a guideline range
of 151-188 months. The Addendum noted that this range would
require "an upward departure if the Court were to sentence
the defendant to the amount of time designated in the plea
agreement [228 months]."
On the same day that the Addendum to the PSR was
disclosed, the government and Carrozza filed separate
sentencing memoranda, each arguing to the court that the
agreed upon sentence constituted a justifiable downward
departure.
The sentencing hearing was held on April 29, 1992.
At the outset of the sentencing hearing, the court explained
that under Rule 11(e)(1)(C), it could either accept the plea
agreements and impose the agreed-upon sentence in each case,
or reject the agreements and offer the defendants an
opportunity to withdraw their pleas. The court clearly
articulated the disparate guideline ranges calculated by the
government and the probation office and then stated:
I think the most sensible thing to do is
to not resolve that dispute but to decide
-42-
whether the 228-month sentence, which I
think is about 19 years, if it is,
indeed, an eight-month downward departure
as the Government intends, is
appropriate. . . .
Well, I am going to proceed . . . in the
following fashion: I am not deciding
whether the Guidelines are 151 months to
188 months or [if] Probation's
calculation is followed, which would
involve 40-month upward departure or
whether, as the Government contends, that
Mr. Carrozza has assumed up to now, [or]
at least up to the time of his plea, the
calculations might be 235 to 293 months.
I am going to analyze this in the context
of the question being whether if the
Guidelines are 235 [to] 293 months, the
seven-month downward departure to 228
months [as] called for by the plea
agreement is justifiable.
The court explained that it was not resolving the dispute
because Fed. R. Crim. P. 32 does not require resolution of
issues that will not be material to the sentence to be
imposed. When asked if anyone objected to this
procedure, the parties responded "no." Consistent with their
prehearing positions, both Carrozza and the government argued
that the agreed upon sentence represented a justifiable
downward departure from the applicable guideline range.
The court thereafter sentenced Carrozza to 228
months imprisonment, to be followed by 60 months supervised
release. On the same day, the district court entered an
order relating to the presentence reports. In this order,
the court stated that one of the justifications for its
-43-
downward departures for several of the defendants was that
the departures "eliminated the need for both a lengthy trial
(which it was estimated would take six months to a year) and
for protracted sentencing hearings to resolve disputes
relevant to the term of incarceration to be imposed on each
defendant."
On April 30, 1992, the court entered its "Second
Order Relating to Presentence Report" in Carrozza's case. In
that order, the court expressly relied on Fed. R. Crim. P.
32(c)(3)(D)(ii) as its justification for failing to calculate
the sentencing guideline range applicable to Carrozza:
With regard to the government's
objections to the PSR, the court,
pursuant to Fed. R. Crim. P.
32(c)(3)(D)(ii), did not decide whether
the applicable Sentencing Guidelines were
235 to 293 months as asserted by the
government or 151 to 188 months as
recommended by the Probation Officer.
Rather, the court assumed the Sentencing
Guidelines were a minimum of 235 months
and agreed with the government and the
defendant that if the binding plea
agreement, pursuant to Fed. R. Crim. P.
11(c)(1)(C) [sic], calling for a sentence
of 228 months represented a departure,
there were justifiable reasons for it.
Thus, the agreed-upon 228 month sentence
was imposed.
Judgment was entered on May 1, 1992.
Notwithstanding the court's previous assertions that it was
merely "assuming" that the government was correct, the
judgment indicates that the court found the guideline range
to be 235-293 months and imposed a downward departure for
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justifiable reasons. In a May 7, 1992 memorandum explaining
its sentence, the court once again stated its basic
assumption:
In the Presentence Report, the Probation
Department calculated Carrozza's
Sentencing Guidelines to 151 to 188
months. The government, however,
contended that the proper calculation of
Carrozza's Sentencing Guidelines was 235
to 293 months. Carrozza's plea agreement
specified a sentence of 228 months, or 19
years, in prison. The court analyzed his
plea agreement on the assumption that the
required sentence represented a seven
month downward departure.
On appeal, Carrozza contends that the sentencing
procedure employed by the district court was patently
unlawful because the court failed to determine the applicable
guideline range.
A. Plain Error Standard12
____________________
____________________
12. In its jurisdictional statement, the government
questions whether this court has jurisdiction over the
instant appeal. The government notes that a defendant may
only appeal a sentence pursuant to a Rule 11(e)(1)(C) plea
agreement on the grounds that the sentence was imposed in
violation of law or as a result of an incorrect application
of the guidelines. 18 U.S.C. 3742(c). In his
jurisdictional statement, Carrozza asserts only that the
sentence was in violation of the law. Because Carrozza
provides no authority for the proposition that a claim such
as he raises of procedural error in determining a sentence
may rise to the level of a claim that the resulting sentence
was imposed in violation of the law, the government argues
that this court is without jurisdiction to consider the
appeal. Regardless whether the district court's error rises
to the level of a violation of law, Carrozza clearly argues
in his brief that the district court failed to apply the
guidelines correctly when it "assumed" a role in the offense
adjustment. That is sufficient to give this court
jurisdiction to decide this appeal. See United States v.
___ _____________
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Carrozza concedes that because he failed to object
to the district court's course of conduct during the
sentencing hearing, his sentence can be reversed only upon a
showing of plain error. See Fed. R. Crim. P. 52(b).
___
Carrozza has failed to make such a showing here.
The Supreme Court recently interpreted the plain
error rule in United States v. Olano, 113 S. Ct. 1770 (1993).
_____________ _____
In Olano, the Court reiterated the three limitations on
_____
appellate authority to recognize errors under Fed. R. Crim.
P. 52(b): (1) there must be an "error," (2) the error must
be "plain," and (3) the error must "affec[t] substantial
rights." Id. at 1777-78. Even if a defendant can establish
___
all three criteria, an appellate court has discretion not to
review the error because Rule 52(b) is written in permissive,
not mandatory, terms. Id. at 1778. The standard to guide
___
that discretion was stated in United States v. Atkinson, 297
_____________ ________
U.S. 157, 160 (1936): appellate courts should correct plain
forfeited errors affecting substantial rights if the errors
"seriously affect[] the fairness, integrity or public
reputation of judicial proceedings." Olano, 113 S. Ct. at
_____
1779.
We agree with Carrozza that the district court
committed error when it "assumed" that Carrozza's guideline
____________________
Smith, 918 F.2d 664, 668-69 (6th Cir. 1990) (upholding the
_____
right of a defendant to file a similar appeal under 18 U.S.C.
3742(a)(1) or (a)(2)), cert. denied, 111 S. Ct. 1088 (1991).
____________
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range was 235-293 months prior to its "downward" departure to
228 months. Before accepting a plea agreement that contains
a specific sentence under Fed. R. Crim. P. 11(e)(1)(C), a
sentencing court is required to satisfy itself either that:
"(1) the agreed sentence is within the applicable guideline
range; or (2) the agreed sentence departs from the applicable
guideline range for justifiable reasons." U.S.S.G.
6B1.2(c). To determine whether the sentence departs from the
applicable guideline range for justifiable reasons, the court
must first determine what the applicable guideline range is
and then analyze whether a departure is authorized by 18
U.S.C. 3553(b) and the general departure rules in Chapter
1, Part A (4)(b) of the Guidelines. See U.S.S.G. 6B1.3,
___
Commentary. In effect, 6B1.2(c) instructs courts to apply
general guideline principles when determining whether to
accept a plea under Fed. R. Crim. P. 11(e)(1)(C). See
___
U.S.S.G. 1B1.1 (general instructions on applying the
guidelines).13
____________________
13. The government argues that Carrozza has waived his right
to have the district court determine an actual guideline
range by expressly agreeing to the district court's decision
to assume a guideline range. A deviation from a legal rule
is not considered an "error" if that legal rule has been
waived, as opposed to merely forfeited. See Olano, 113 S.
___ _____
Ct. at 1777 ("Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.") (internal
quotations omitted). We doubt that the sentencing guidelines
can be waived. For example, we suspect that an agreement
between the government and a defendant not to apply the
guidelines would be ineffective. Because of doubts that the
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In sentencing Carrozza, the district court
mistakenly believed that Fed. R. Crim. P. 32(c)(3)(D)
authorized its decision not to determine an actual guideline
range for Carrozza's offenses. As we have stated, this was
error. Rule 32(c)(3)(D)14 apparently relates to factual
inaccuracies in a presentence report, not to mixed questions
of law and fact that a defendant does not dispute. See
___
United States v. Hand, 913 F.2d 854, 857 (10th Cir. 1990)
_____________ ____
(defendant's disagreement over PSR's legal conclusion that
defendant was not a minor participant does not allege factual
inaccuracies in the PSR and does not implicate Rule
32(c)(3)(D)). But see United States v. Rosado-Ubiera, 947
_______ _____________ _____________
F.2d 644, 646 (2d Cir. 1991) (Rule 32(c)(3)(D) was violated
____________________
sentencing guidelines are waivable, we rest our decision
today on Carrozza's failure to establish that the district
court's error affects substantial rights, and on our
discretion not to recognize plain errors even when they do
affect substantial rights.
14. Fed. R. Crim. P. 32(c)(3)(D) provides in pertinent part
the following:
If the comments of the defendant and the
_________
defendant's counsel or testimony or other information
introduced by them allege any factual inaccuracy in the
__________________
presentence investigation report or the summary of the
report or part thereof, the court shall, as to each
___________
matter controverted, make (i) a finding as to the
____________________
allegation, or (ii) a determination that no such finding
is necessary because the matter controverted will not be
taken into account in sentencing.
Fed. R. Crim. P. 32(c)(3)(D) (emphasis added).
-48-
when court failed to resolve the defendant's precise role in
the offense).
To be sure, a district court has inherent power not
to decide disputes that are immaterial or irrelevant to the
ultimate sentence. For example, a sentencing court need not
determine whether prior convictions should be added to a
defendant's criminal history score if the addition will not
affect the defendant's criminal history category. See United
___ ______
States v. Lopez, 923 F.2d 47, 51 (5th Cir.), cert. denied,
______ _____ ____________
111 S. Ct. 2032 (1991). We have also held that a sentencing
court need not choose between two overlapping guideline
ranges when the same sentence would have been imposed under
either range. United States v. Ortiz, 966 F.2d 707, 718 (1st
_____________ _____
Cir. 1992), cert. denied, 113 S. Ct. 1005 (1993); United
_____________ ______
States v. Concemi, 957 F.2d 942, 953 (1st Cir. 1992); United
______ _______ ______
States v. Bermingham, 855 F.2d 925, 934 (2d Cir. 1988). Here
______ __________
however, the two ranges did not overlap, nor was the
sentencing factor immaterial to Carrozza's guideline range.
Instead, if the disputed factor was decided in the
government's favor, Carrozza's sentencing range would be 235-
293 months, but if the issue was decided as the probation
office recommended, Carrozza's guideline range would be 151-
188 months.
We have also intimated in the past that if a
sentencing court intends to depart, an error in applying the
-49-
guidelines may prove to be harmless if the court makes clear
that it would have departed to the same sentence regardless
of the exact guideline range. United States v. Plaza-Garcia,
_____________ ____________
914 F.2d 345, 347 (1st Cir. 1990). We have never, however,
suggested that a sentencing court need not decide a
sentencing factor when one decision will result in an upward
departure and another in a downward departure. Such a rule
would be inimical to the very principle behind guideline
departures. United States v. McCall, 915 F.2d 811, 814 n.3
_____________ ______
(2d Cir. 1990) (rejecting government's argument that
incorrect application of guidelines, resulting in range of
151-188 months instead of 87-108 months, was irrelevant to
court's ultimate sentence because court indicated an intent
to depart down for substantial cooperation an indication
____
that could not be reconciled with court's 108-month sentence,
which was at the high end of the correct guideline range).
The district court, therefore, erred when it simply
assumed that Carrozza's guideline range was 235-293 months,
and ignored the probation office's suggestion that the range
should be 151-188 months. And while we can understand and
sympathize with the district court's desire to avoid an
obtuse decision that may have seemed academic, we think the
error was "plain" in the sense that it was both "clear" and
"obvious." See Olano, 113 S. Ct. at 1777. That is enough to
___ _____
-50-
pass the second hurdle to appellate authority under Rule
52(b).
We now turn to the third and often deciding factor
in our plain error analysis whether the error affects
substantial rights. In most cases, "although perhaps not in
every case, the defendant must make a specific showing of
prejudice to satisfy the 'affecting substantial rights' prong
of Rule 52(b)." Olano, 113 S. Ct. at 1778. For several
_____
reasons, we think Carrozza has not made such a showing here.
First, Carrozza has not argued, and points to no
evidence suggesting, that an actual adjustment for his role
in the offense would have been improper. Instead, Carrozza
merely assumes that the district court's "assumption" was in
fact wrong, and argues that he was prejudiced because his
actual guideline range might have been years shorter than
_____
that assumed by the district court. However, analysis of the
record reveals that, in all likelihood, the district court's
assumption that Carrozza's base offense level was 35 was
correct.
The difference between the government's and the
probation office's calculations of Carrozza's base offense
level resulted entirely from whether or not an upward
adjustment should have been given for Carrozza's role in the
drug conspiracy. The probation office assigned a level 26 to
Carrozza's drug trafficking activity. The government argued
-51-
that this level should be increased by four levels to 30
because Carrozza was an organizer/leader of this activity and
because the activity involved more than five participants.
See U.S.S.G. 3B1.1(a). Because Carrozza's narcotics
___
activities yielded the highest offense level among Carrozza's
various offenses and, therefore, served as a starting point
for the multiple count analysis under U.S.S.G. 3D1.4, the
difference was crucial. Applying the multiple count
analysis, both the probation office and the government added
five levels the probation office arriving at a total
offense level 31 and a guideline range of 151-188 months, and
the government calculating a total offense level 35 and a
guideline range of 235-293 months.
The probation office rejected the government's
request for a role in the offense adjustment for any of
Carrozza's offenses, contending that there was insufficient
evidence as to Carrozza's role in the individual offenses to
make such a determination. While the specifics with regard
to Carrozza's role in his bookmaking and extortion offenses
are rather sketchy, the government provided more than
sufficient evidence that Carrozza directed the narcotics
activities of five or more participants. The government's
104-page factual submission to the probation office is
replete with evidence that Carrozza directed and organized
the drug trafficking conspiracy. Given this evidence, it is
-52-
understandable why Carrozza completely neglected to argue the
propriety of a role in the offense adjustment in his
appellate brief and below. Since it is Carrozza's burden to
establish that the district court's error affected
substantial rights, his failure to argue that a four-level
role in the offense adjustment would have been improper,
combined with the fact that an adjustment would have been
appropriate at least with respect to the crucial narcotics
conspiracy, undermines Carrozza's claim of prejudice. To be
sure, a role in the offense adjustment is a mixed question of
law and fact. In most instances, an appellate court will not
examine such questions in the first instance. We make the
analysis only to indicate the unlikelihood that Carrozza was
prejudiced by the district court's failure to decide the
issue.
A further reason for finding no error affecting
substantial rights is the significant benefits Carrozza
received in exchange for his plea of guilty. In exchange for
Carrozza's agreement to a 228-month sentence, the government
promised not to prosecute Carrozza for his alleged
involvement in the murder of William Grasso an offense
that could carry a sentence of life imprisonment and the
attempted murder of Frank Salemme, Sr. In addition, the
government promised not to subpoena Carrozza to testify in
any federal grand jury investigation in the District of
-53-
Massachusetts relating to the activities of the Patriarca
Family. This later promise was probably significant to
Carrozza, who, as a made member of the Patriarca Family, had
taken the oath of "omerta" to protect the secrets of the
Patriarca Family of La Cosa Nostra to his grave. In light of
the significant benefits Carrozza received from the plea
agreement, it is difficult to see how he was prejudiced by
the district court's acceptance of his plea and sentencing
him to a term of imprisonment upon which he had specifically
agreed. See United States v. Ybabez, 919 F.2d 508, 510 (8th
___ _____________ ______
Cir. 1990) ("We do not discern a miscarriage of justice when
a defendant receives the sentence he bargained for in a plea
agreement."), cert. denied, 111 S. Ct. 1398 (1991).
____________
Finally, even if Carrozza were able to establish
some form of prejudice from the district court's failure to
address his role in the offense and thereby pass the third
and final hurdle of appellate authority under Fed. R. Crim.
P. 52(b), the case would be an inappropriate one for us to
exercise our discretion to recognize plain forfeited errors.
The Supreme Court has made clear on numerous occasions that
courts of appeals should correct plain forfeited errors
affecting substantial rights only if the errors "'seriously
affect[] the fairness, integrity or public reputation of
judicial proceedings.'" Olano, 113 S. Ct. at 1779 (quoting
_____
Atkinson, 297 U.S. at 160). We see no such serious effect
________
-54-
here. Carrozza failed to object in circumstances strongly
indicative that he wished to accept the compromise sentence
because of the benefits it conferred. The attendant
circumstances do not reflect discreditably upon the fairness,
integrity or public reputation of the proceeding.
We vacate Patriarca's sentence and remand for
______
resentencing in accordance with this opinion. Carrozza's
sentence is affirmed.
________
-55-