United States v. Angiulo

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-2067

UNITED STATES OF AMERICA,
Appellee,

v.

DONATO F. ANGIULO,
Defendant, Appellant.

No. 94-2068

UNITED STATES OF AMERICA,
Appellee,

v.

FRANCESCO F. ANGIULO,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Cyr and Boudin, Circuit Judges.

Anthony M. Cardinale for appellants.

James C. Rehnquist, Assistant United States Attorney, with

whom Donald K. Stern, United States Attorney, and Ernest S.

Dinisco, Assistant United States Attorney, were on brief, for the

United States.

June 15, 1995

SELYA, Circuit Judge. This procedural motley requires
SELYA, Circuit Judge.

that we explore the interstices of sentence-related criminal

rules that predate the inauguration of the federal sentencing

guidelines, and are in that sense relics of a bygone era.1

Having completed the judicial equivalent of an archaeological

dig, we deny the requested relief.

I. BACKGROUND
I. BACKGROUND

In 1983, a federal grand jury indicted the appellants,

Donato and Francesco Angiulo, along with several others, for

activities allegedly undertaken in furtherance of the affairs of

the Patriarca family of La Cosa Nostra. Though the indictment

charged certain members of the enterprise with predicate offenses

that included murder, it did not allege that Donato or Francesco

Angiulo personally had committed any homicidal acts. Following a

lengthy trial, a jury found the appellants guilty on a plethora

of counts, including conspiracy to make extortionate extensions

of credit, 18 U.S.C. 892(a), RICO conspiracy, id. 1962(d),

racketeering violations, id. 1962(c), and operation of an

illegal gambling business, id. 1955.

On April 3, 1986, the Hon. David S. Nelson, who had

presided at the trial, convened a disposition hearing. The

colloquy focused on the presentence investigative reports (PSI

Reports). Among other things, both PSI Reports contained a

statement, under the heading "prosecution version," to the effect

1We set forth in an appendix hereto the text of the relevant
procedural rules as they stood on the date of sentencing (April
3, 1986).

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that the enterprise with which the appellants were affiliated

the Patriarca family engaged in "crimes, including murder, as a

matter of duty," in order to advance familial interests. There

followed a compendium of felonies, including four murders and two

unconsummated murder conspiracies, allegedly committed by the

enterprise. Elliot Weinstein, Francesco Angiulo's attorney,

took umbrage at that account. He stated in part:

In support of my objection and request
to strike . . . I indicate that nowhere
during the proceedings in the case was there
any evidence or suggestion that my client was
involved in acts of murder, conspiracies to
murder or shared in any intent or desires for
the murder of any person at all. The
specifically named victims in the pre-
sentence report have no relationship
whatsoever to my client and indeed during the
course of the proceedings the government
stated to the Court at several sidebar
discussions and the Court indeed instructed
the jury that evidence as to murders was not
being admitted against Francesco Angiulo . .
. .

Robert Sheketoff, Donato Angiulo's lawyer, joined in the

objection. He termed the recital "misleading" and added:

My client was not charged with any
predicate acts involving murder. And I think
it is severely prejudicial the way they have
drafted this and it is not clear from the
report I would suggest either in the offense
section or in any point in the report that,
in fact, he was not charged, that there is an
affirmative statement that he was not charged
with any predicate acts of the verdict.

Judge Nelson overruled these objections and left intact the

references to the multiple murders. He proceeded to sentence

both Angiulos to lengthy terms of immurement. The brothers

appealed their convictions on other grounds, but eschewed any

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further challenge to the PSI Reports. Their appeals were

unavailing. See United States v. Angiulo, 897 F.2d 1169 (1st

Cir.), cert. denied, 498 U.S. 845 (1990).

On December 18, 1990, the appellants filed

substantially identical motions for sentence reduction in the

district court. They served these motions within 120 days of the

Supreme Court's denial of certiorari (which occurred on October

1, 1990). The motions invoked former Criminal Rule 35(b) and

spotlighted a purported disparity between the sentences

appellants received and the sentences appellants would have

received under the newly minted federal sentencing guidelines.

The government filed objections to the motions and subsequently

served a detailed opposition.

Toward the end of 1991, the appellants, acting pro se,

each filed an undated "Rule 35 Reply" that bemoaned the adverse

parole-related effects of the references to murder in the PSI

Reports. These pleadings raised, for the first time, the charge

that Judge Nelson had violated Fed. R. Crim. P. 32(c)(3)(D) in

the course of imposing sentence. On January 24, 1992, the

appellants, through new counsel, each filed in the district court

a pleading entitled "Appeal Pursuant to 28 C.F.R. 542.15 and/or

Motion Pursuant to Rule 32(c)(3)(D)." These pleadings described

the anticipated adverse effects of the murder references

contained in the PSI Reports, and sought the expungement of those

references. In each instance, the clerk of court docketed the

pleading as a separate motion. The contents are consistent with

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that characterization: each pleading clarified that "[t]he

alternative and additional remedy [each appellant] seeks pursuant

to Fed. R. Crim. P. 32(c)(3)(D) is simply another more expedient

manner of effecting the relief he has previously sought

administratively."2 These pleadings adopted the defendants'

earlier Rule 35(b) motions by reference but cautioned that the

new initiatives should be viewed separate and apart therefrom "as

an effort to implement the Rule 32 requests [that each] defendant

made at the time of his sentencing."

Matters remained dormant for a spell, presumably

because Judge Nelson assumed senior status. Eventually, the Hon.

William G. Young stepped into the void. On April 25, 1994, Judge

Young denied the appellants' Rule 35(b) motions, concluding that

the sentences imposed by Judge Nelson were "entirely justified

and necessary" to vindicate important public policy concerns.

United States v. Angiulo, 852 F. Supp. 54, 62 (D. Mass. 1994).

The Angiulos did not prosecute appeals from the denial of their

Rule 35(b) motions.

On May 31, 1994, the appellants filed a written request

asking Judge Young to hold a "status conference regarding

defendants' motions pursuant to Rule 32(c)(3)(D)." Although the

record is tenebrous as to whether such a conference materialized,

the request sufficed to bring the Rule 32 motions to the

2The regulation cited in the January 24 pleadings describes
the procedure for administrative appeals within the Bureau of
Prisons, but makes no mention of judicial review. See 28 C.F.R.

542.15 (1994).

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forefront. In an unpublished rescript dated September 12, 1994,

Judge Young addressed those motions. He discerned no violation

of Rule 32, finding that the objections proffered at the

disposition hearing did not dispute the factual accuracy of the

murder references. In the bargain, the court expressed doubt

about the intrinsic merit of the objections, indicating that the

statements contained in the PSI Reports were not misleading, and,

moreover, were directly relevant to the sentencing determination.

The appellants filed these timely appeals in the wake

of the court's September 12 order. They seek either resentencing

or, in the alternative, redaction of the PSI Reports to remove

the murder references that they believe are hindering their

chances to secure parole.

II. ANALYSIS
II. ANALYSIS

We start with bedrock. Although a district court's

denial of a motion for sentence reduction under former Rule 35(b)

is a final order, and, thus, an appealable event, see, e.g.,

United States v. McAndrews, 12 F.3d 273, 278 (1st Cir. 1993); see

also United States v. Distasio, 820 F.2d 20, 24 (1st Cir. 1987)

(holding the grant of a sentence reduction to be an appealable

order), the present appeals are not of that persuasion. The

district court denied the Rule 35(b) motion by order entered

April 25, 1994, and no action was taken within the applicable

appeal period. See Fed. R. App. P. 4(b) (providing that such

appeals must be taken within 10 days from date of entry of the

order); see also United States v. Morrillo, 8 F.3d 864, 867 (1st

6

Cir. 1994) (explaining that the time limits for taking appeals in

criminal cases are "mandatory and jurisdictional"). Hence, the

district court's Rule 35(b) determinations are not susceptible to

review at this late date.3

Refined to bare essence, the defendants' appeals must

stand or fall based on Fed. R. Crim. P. 32. We think they fall.

Criminal Rule 32 provides no independent foundation for a

postsentence motion to correct a PSI Report and, under the

circumstances that obtain here, the appellants' motions cannot

properly be recharacterized as timely motions under Rule 35. We

explain briefly.

We frequently have recognized the importance of Rule 32

and we have emphasized its requirement of literal compliance.

See, e.g., United States v. Hanono-Surujun, 914 F.2d 15, 18-20

(1st Cir. 1990); United States v. Jimenez-Rivera, 842 F.2d 545,

550-51 (1st Cir.), cert. denied, 487 U.S. 1223 (1988). These

attributes, however, do not create jurisdiction for a court to

entertain postsentence motions alleging violations of Rule 32.

In the absence of either an enabling statute or language in the

3In any event, former Rule 35(b) conferred virtually
unfettered discretion on sentencing courts. See, e.g., United

States v. DeCologero, 821 F.2d 39, 41 (1st Cir. 1987) (discussing

breadth of district court's discretion). Thus, it seems highly
unlikely that Judge Young's refusal to grant relief thereunder
could successfully have been challenged,especially given the
obvious inadequacy of the motions' linchpin assertion. See

United States v. Twomey, 845 F.2d 1132, 1134-35 (1st Cir. 1988)

(upholding denial of Rule 35(b) motion and explaining that
district courts have no obligation to harmonize sentences for
pre-guidelines offenses with sentencing results produced by
application of the guidelines).

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rule's text that could conceivably be read as authorizing such

jurisdiction, we hold that Rule 32, in and of itself, does not

confer district court jurisdiction to conduct a postsentence

review. Accord United States v. Engs, 884 F.2d 894, 895 (5th

Cir. 1989) (agreeing that "no postsentence jurisdiction exists

based solely on Rule 32(c)(3)(D)"); United States v. Giaimo, 880

F.2d 1561, 1563 (2d Cir. 1989) (holding that "Rule 32, standing

alone, does not give a district court jurisdiction to correct

inaccuracies in a PSI report after a defendant has been

sentenced"); United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.

1988); United States v. Peloso, 824 F.2d 914, 915 (11th Cir.

1987); United States v. Williams, 618 F. Supp. 1419, 1420 (E.D.

Va. 1985), aff'd, 785 F.2d 306 (4th Cir. 1986); United States v.

Sheela, 667 F. Supp. 724, 726 (D. Or. 1987); United States v.

Burkhead, 567 F. Supp. 1425, 1427-28 (W.D. Mo. 1983).4

Appellants try to locate a serviceable vehicle for

their Rule 32 claims by characterizing their supplementary

motions as ones that were brought under Rule 35. We, and other

courts, sometimes have allowed violations of Rule 32 to be

addressed in timely Rule 35 motions. See, e.g., United States v.

Feigenbaum, 962 F.2d 230, 232-33 (2d Cir. 1992); United States v.

Smith, 844 F.2d 203, 207 (5th Cir. 1988); Sarduy, 838 F.2d at

158; United States v. Katzin, 824 F.2d 234, 237-38 (3d Cir.

4At least one court has reached an opposite conclusion. See

United States v. Hart, 922 F.2d 613, 615 (10th Cir. 1990). With

respect, we regard Hart as wrongly decided and we decline to

follow it.

8

1987); Peloso, 824 F.2d at 915; United States v. Santamaria, 788

F.2d 824, 828-29 (1st Cir. 1986). This avenue of review,

however, is properly seen as founded on former Rule 35(a), and

more particularly, on the prong of former Rule 35(a) that permits

a district court to "correct a sentence imposed in an illegal

manner." Like motions arising under former Rule 35(b), such Rule

35(a) motions must be filed within 120 days next following the

entry of final judgment.5

In view of this legal mise-en-scene, the appellants'

attempt to anchor jurisdiction on former Rule 35 suffers from

several infirmities which, taken together, prove fatal to their

endeavor. First, jurisdiction to review the alleged violations

of Rule 32 cannot be based on Rule 35(b) in the circumstances of

this case. While the district court permissibly could have

considered any Rule 32 irregularities when it decided the Rule

35(b) motions for discretionary sentence reduction in April of

1994, it had no obligation to do so, and, in all events, the

Angiulos did not take timely appeals from the denial of these

motions.

Second, the circumstances do not permit jurisdiction

properly to be premised on former Rule 35(a). The appellants

5Although former Rule 35(a) also allowed a district court to
correct an "illegal sentence at any time," that remedy was not
available to address a Rule 32 violation because "illegal
sentences" were limited to those that "`exceed the relevant
statutory maximum limits or violate double jeopardy or are
ambiguous or internally contradictory.'" Katzin, 824 F.2d at 237

(quoting 8A James W. Moore, Moore's Federal Practice 35.03[2],

at 35-36 (2d ed. 1987)).

9

neither cited that rule to Judge Young nor attempted to base

jurisdiction on it; and, as we have said, "absent the most

extraordinary circumstances, legal theories not raised squarely

in the lower court cannot be broached for the first time on

appeal." Teamsters, Chauffeurs, Warehousemen & Helpers Union,

Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.

1992). This principle is fully applicable in criminal cases.

See, e.g., United States v. Slade, 980 F.2d 27, 30 (1st Cir.

1992).

Furthermore, in order to use former Rule 35(a) as a

vehicle to review ostensible Rule 32 violations, appellants would

have needed to file their motions within 120 days of the Supreme

Court's denial of certiorari. The initial Rule 35(b) motions

were docketed within that time span, but the first pleadings that

mentioned Rule 32 were not served until well after the 120-day

period expired. Even if these subsequent attempts somehow could

be deemed to implicate Rule 35(a), the failure to comply with the

120-day deadline would defeat jurisdiction.6 See United States

v. Ames, 743 F.2d 46, 48 (1st Cir. 1984) (noting that the time

limitations specified in former Rule 35 are mandatory and

6It is often assumed that inaccuracies in a PSI Report may
form the basis for a petition under 18 U.S.C. 2255. See United

States v. Gattas, 862 F.2d 1432, 1433-34 & n.4 (10th Cir. 1988);

United States v. Mosquera, 845 F.2d 1122, 1124 n.1 (1st Cir.

1988). In addition, courts have suggested that such relief may
be obtainable pursuant to 18 U.S.C. 2241. See Peloso, 824 F.2d

at 915; United States v. Daniels, 737 F. Supp. 111, 114 (D. Me.

1990). The appellants have not asserted jurisdiction under
either of those statutes, and they have expressly disclaimed
reliance on section 2255. Thus, we take no view of the
appropriateness vel non of any such potential remedies.

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jurisdictional), cert. denied, 469 U.S. 1165 (1985).

III. CONCLUSION
III. CONCLUSION

In this instance, all roads lead to Rome. On one hand,

the appellants did not perfect timely appeals from the district

court's denial of their Rule 35(b) motions, and, hence, those

motions are dead letters. On the other hand, insofar as the

appellants' postsentence motions rest on Rule 32, simpliciter,

the district court lacked jurisdiction to consider them.7

Affirmed.
Affirmed.

7Of course, the district court should simply have denied the
Rule 32 motions for lack of jurisdiction, rather than reaching
the merits of the alleged Rule 32 violations. Accordingly, its
comments, though insightful, should not be accorded binding force
or effect if further proceedings eventuate.

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APPENDIX
APPENDIX

Former Criminal Rule 35, which applies to offenses
committed prior to November 1, 1987, provides in pertinent part:

(a) Correction of Sentence. The court
(a) Correction of Sentence.
may correct an illegal sentence at any time
and may correct a sentence imposed in an
illegal manner within the time provided
herein for the reduction of sentence.

(b) Reduction of Sentence. A motion to
(b) Reduction of Sentence.
reduce a sentence may be made, or the court
may reduce a sentence without motion, within
120 days after the sentence is imposed or
probation is revoked, or within 120 days
after receipt by the court of a mandate
issued upon affirmance of the judgment or
dismissal of the appeal, or within 120 days
after entry of any order or judgment of the
Supreme Court denying review of, or having
the effect of upholding, a judgment of
conviction or probation revocation. . . .

Fed. R. Crim. P. 35.

Criminal Rule 32(c)(3)(D), as applicable to offenses
committed prior to November 1, 1987, provides that:

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 finding is necessary
because the matter controverted will not be
taken into account in sentencing. A written
record of such findings and determinations
shall be appended to and accompany any copy
of the presentence investigation report
thereafter made available to the Bureau of
Prisons or the Parole Commission.

Fed. R. Crim. P. 32(c)(3)(D).

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