United States v. Dennis L. Astorri

HUTCHINSON, Circuit Judge,

concurring in part and dissenting in part.

I respectfully dissent from the Court’s holding, explained in Part VI of its opinion, that the district court’s two-level increase in Astorri’s guidelines sentence offense level was proper because some of the victims of his fraud suffered “extreme psychological injury” as that term is defined in Guidelines § 5K2.3. Therefore, I would instruct the district court on remand to resentence Astorri under the guidelines by reducing his offense level an additional two levels. In all other respects I join the opinion of the Court.

I dissent from the Court’s approval of a two level increase under § 5K2.3 for three reasons. First, I believe that the district court’s finding that some of Astorri’s victims suffered “extreme psychological injury” as that term is defined in Guidelines § 5K2.3 is clearly erroneous. Second, I believe that the reasons the district court gave for increasing Astorri’s offense level by two for extreme psychological injury to some of his victims show that the district court misunderstands the relation of Guidelines § 5K2.3 on extreme psychological injury to Guidelines § 3A1.1 relating to increases where victims are especially vulnerable, § 3B1.3 relating to abuse of trust and §‘ 2Fl.l(b)(l)(H) relating to amount of monetary loss. Finally, I believe that the district court’s reliance on the severity of the economic loss some of Astorri’s victims suffered because of their age, financial circumstance or the relation between Astorri and his fiancee’s family are all adequately dealt with in the guidelines sections mentioned.

*1060A departure under § 5K2.3 is not justified when the harm to a convict’s victims and the nature of his conduct are adequately considered in other guidelines. See 18 U.S.C.A. § 3553(b) (West Supp.1990); Guidelines § 5K2.0 (“Where ... the applicable offense guideline and adjustments do take into consideration a factor listed in this subpart, departure from the applicable guideline range is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense.”); United States v. Uca, 867 F.2d 783, 786-87 (3d Cir.1989). Determinate sentencing under the guidelines requires separation of the factors for consideration in departures from those already taken into consideration elsewhere in the guidelines.

With these points in mind I turn to a consideration of the circumstances under which the guidelines permit an upward departure for “extreme psychological suffering.” 1 Guidelines § 5K2.3, quoted by the Court, typescript at 13, permits an upward departure for psychological suffering only “[i]f a victim ... suffered psychological injury much more serious than normally resulting from commission of the of-fense_” (emphasis added).

Section 5K2.3 goes on to say that this level of severity normally is reached “only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns.”

The only evidence that the district court referred to in support of its decision to increase Astorri’s offense level by two under Guidelines § 5K2.3 was its own observations, some lay opinions about the victims’ medical problems, the advanced age of some of the victims and the severe impact the loss of their lives’ savings and one family’s home had on their plans for retirement or their children’s education.

The district court’s conclusion that the Kronyaks, the Taylors, the Rosses and the Needles suffered extreme psychological injury is based largely upon its own observation of their reaction to their situation and the “devastation which this scheme to defraud has inflicted upon them.” Appendix (App.) at 20. It had before it no expert medical evidence to support its finding that they suffered “actual physical and psychological health effects,” see App. at 20, manifested in “physical or psychological symptoms or by changes in behavior patterns” that substantially impaired their “intellectual, psychological, emotional, or behavioral functioning.” See Guidelines § 5K2.3.

Besides its own observations, the only evidence the district court referred to in support of its conclusion that some of As-torri’s victims had suffered “actual physical and psychological health effects,” see App. at 20, are taken from two letters and portions of the pre-sentence report. The first letter is from an attorney, Thomas Neuberger. He states that Mr. Taylor’s health has not been good and the entire ordeal involving Astorri has been the source of a great deal of stress that on occasion caused Mr. Taylor to weep when he was in Mr. Neuberger’s presence. See App. at 70. However, a letter that Mr. Taylor himself submitted makes it clear that the health problems referred to in Mr. Neuberger’s letter as well as in the presen-tence report had either developed before Astorri’s scheme took place or were unrelated to that scheme. See App. at 72.

Mr. Taylor had a heart attack in December, 1983, and open heart surgery in April, 1984, but this was before Astorri’s scheme began. In June, 1986, cancerous lumps were removed from Mr. Taylor’s chest, and in December, 1986, he had surgery to remove his gall bladder. There is no reliable *1061evidence to show that the tumors or the gall bladder problem were related to Astor-ri’s conduct.

The Needles wrote the second letter upon which the district court relied. In it, they state:

Both of us suffered, Audrey H. Needles with high blood pressure (which was out of control and almost hospitalized) and is now on medication and under a doctor’s care. Dennis Astorri’s fraudulent act caused us considerable pain, anxiety, embarrassment and anger. We would still like our money to be returned to us!

App. at 85.

The evidence about the effect Astorri’s fraud had on the Taylors and the Needles’ health is insufficient to support the district court’s conclusion that some of the victims suffered the kind of substantial and permanent physical, intellectual or behavioral impairments that Guidelines § 5K2.3 requires before an upward departure for extreme psychological injury is authorized. These unsupported lay statements are not reliable evidence of the kind required to support enhancement of a guidelines sentence. See, e.g., United States v. Sciarrino, 884 F.2d 95 (3d Cir.) (while hearsay is permissible in determining a guidelines sentence, it must have some degree of reliability), cert. denied, — U.S. -, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989).

Likewise, I think the sentencing judge’s own observations that the psychological trauma naturally resulting from the economic losses Astorri’s fraud visited upon his victims and his profound betrayal of the Kronyaks and their daughter is insufficient to show objective symptoms of substantial and continuous intellectual, psychological, emotional or behavioral impairment. Those observations are conclusions that must be founded on reliable evidence under the guidelines. They are not themselves evidence.

Perhaps determinations of crime’s effect on its victims would have been better left to the observations and sound discretion of the sentencing judge, but Congress has decided otherwise. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 652, 102 L.Ed.2d 714 (1989). The Sentencing Commission has acted to implement Congress’s decision when it confined the sentencing judge to a relatively narrow sentence range objectively determined on the basis of reliable evidence that particular effects accompany a particular crime. Even in departures, where a fairly large element of discretion is retained, facts grounded on reliable evidence must show that one of the reasons for departure is present.

I do not doubt that a person suffers psychologically when he loses his life’s savings, let alone his home. However, I believe any economic loss a victim suffers is otherwise adequately taken into account under Guidelines § 2F1.1(b)(1)(H), adjusting the offense level for the amount of monetary loss. Likewise, I believe that the age of the victim is taken into account under Guidelines § 3A1.1, relating to vulnerable victims, a section which the district court correctly applied to enhance Astorri’s sentence.

Astorri’s conduct demonstrates a heartless willingness to trade on the affection of the woman he had promised to marry and the trust she and her parents placed in him while he secretly plundered the savings her parents had reserved against their old age. The common understanding of men and women of every time and place condemns Astorri as a despicable cad. However, the Sentencing Commission has taken Astorri’s truly outrageous and cynical manipulation of his fiancee’s family for his own private gain into consideration in Guidelines § 3A1.1, relating to vulnerable victims, and Guidelines § 3B1.3, relating to abuse of trust.

Guidelines § 5K2.3 focuses elsewhere in permitting enhancement for extreme psychological suffering. There is no reliable evidence in this record to show such an injury. Although the evidence here is sufficient to support the district court’s finding that Astorri’s victims were vulnerable and to show that his scheme included the elements of an abuse of trust, it was not sufficient to show any of Astorri’s victims suffered “extreme psychological injury” *1062and so permit enhancement of his sentence under § 5K2.3.

By using factors adequately taken into account elsewhere in the guidelines as a basis for an enhancement under Guidelines § 5K2.3, the district court erred when it added two levels to Astorri’s offense related conduct for his victims’ extreme psychological suffering. See Uca, 867 F.2d at 786-87.

Accordingly, in addition to the reduction of the offense level the Court orders, I would reverse the district court’s two level upward departure under Guidelines § 5K2.3 and remand for resentencing in accordance with the Guidelines at an offense level four steps below the level the district court used at Astorri's initial sentencing.

. Because I do not believe any departure was appropriate, I do not reach or consider the issue of whether this particular departure was reasonable. Simply put, I believe our scope of review on this record is plenary. See United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). Moreover, even with respect to the district court's findings of fact, I cannot agree with the Court that any particular deference is due because of the nature of Guidelines § 5K2.3. Without regard to the particular guideline, the deference due is expressed in the standard "clearly erroneous.”