U.S. v. Levy, No. 01-17133.

• Citation: 374 F.3d 1023
• Decision Date: 23 June 2004
• Docket Number: No. 01-17133.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raphael R. LEVY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

374 F.3d 1023

UNITED STATES of America, Plaintiff-Appellee, v. Raphael R. LEVY, Defendant-Appellant.

No. 01-17133.

United States Court of Appeals, Eleventh Circuit.

June 23, 2004.

Jeffrey S. Weiner, Law Offices of Jeffrey S. Weiner, P.A., Miami, FL, Ronald S. Lowy, Law Offices of Ronald S. Lowy, Miami Beach, FL, for Defendant-Appellant.

Lisette M. Reid, Anne R Schultz, U.S. Atty., Maria Beguiristain, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

Defendant Raphael R. Levy ("Levy") entered into a written plea agreement, in which he pled guilty to two offenses and the government agreed to recommend concurrent sentences. Although the government recommended concurrent sentences at the sentencing hearing, the district court sentenced Levy to consecutive sentences for the two offenses. Levy now appeals his sentences, arguing that the government breached the plea agreement and that the district court deprived him of due process. After review and oral argument, we affirm Levy's sentences.

I. FACTUAL BACKGROUND

A. Offenses

On December 13, 2000, a federal grand jury returned a 52-count indictment charging Levy and twelve codefendants with various offenses related to a large-scale fraud. In this scheme, Levy, his codefendants, and others solicited funds under the guise of investing the funds in viatical settlements.¹ Levy and his codefendants invested only a small portion of the investors' money in viatical settlements and spent most of the money purchasing houses, cars, boats, and other luxury items for themselves. The scheme defrauded investors of more than $117 million.

The indictment charged Levy with: (1) conspiracy to commit mail fraud, in violation of 18 U.S.C. §§ 1341 and 371 (count 1); (2) mail fraud, in violation of 18 U.S.C. §§ 1341 and 2 (counts 2-13); (3) conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B), 1957, and 1956(h) (count 15); (4) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (counts 46-49); and (5) other forfeiture counts.

B. Plea Agreement

Pursuant to a written plea agreement, Levy pled guilty to counts 1 and 15, conspiracy to commit mail fraud and conspiracy to commit money laundering, with the object of the conspiracy being limited to violations of 18 U.S.C. § 1957. In the plea agreement, the government agreed: (1) to dismiss the multiple remaining counts of the indictment; (2) not to oppose Levy's request to reduce his sentence for acceptance of responsibility; (3) that the total funds Levy derived from the scheme was $10,871,222.71; (4) to consider filing a U.S.S.G. § 5K1.1 sentence-reduction motion if Levy cooperated; and (5) to recommend that the court impose sentences on counts 1 and 15 to be served concurrently.²

The plea agreement noted that the sentencing court may impose a statutory maximum term of imprisonment of up to five years for count 1 and up to ten years for count 15. Specifically, the plea agreement stated:

The defendant understands and agrees that the court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understands and agrees that the court may impose a statutory maximum term of imprisonment of up to five (5) years as to Count One, followed by a term of supervised release which can be imposed for a maximum period of three years. The defendant also understands and agrees that the court may impose a statutory maximum term of imprisonment of up to ten (10) years as to Count Fifteen, followed by a term of supervised release which can be imposed for a maximum period of three years....

Significantly, the plea agreement also included this sentencing appeal waiver:

[I]n exchange for the undertakings made by the United States in this plea agreement, the defendant hereby waives all rights conferred by Title 18, United States Code, Section 3742, to appeal any sentence imposed ... or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure from the guideline range that the court establishes at sentencing.

C. Presentence Investigation Report

The probation officer's Presentence Investigation Report ("PSI") detailed the involvement of Levy and his codefendants in the fraud and recommended a guideline sentence for Levy. The PSI grouped together counts 1 (conspiracy to commit mail fraud) and 15 (conspiracy to commit money laundering) and determined Levy's base offense level was six under U.S.S.G. § 2F1.1, which applies to his mail fraud conviction.³ The PSI recommended a thirty-level increase for an offense level of thirty-six based on these sentencing enhancements: (1) an eighteen-level enhancement pursuant to U.S.S.G. § 2F1.1(b)(1)(S) because the loss was more than $80,000,000; (2) a two-level increase pursuant to U.S.S.G. § 2F1.1(b)(2) because the offense involved more than minimal planning or a scheme to defraud more than one victim; (3) a two-level increase pursuant to U.S.S.G. § 2F1.1(b)(3) because the offense was committed through mass marketing; (4) a two-level increase pursuant to U.S.S.G. § 2F1.1(b)(6)(C) because the offense involved sophisticated means; (5) a two-level enhancement pursuant to U.S.S.G. § 3A1.1(b)(1) because Levy knew or should have known that the victims were unusually vulnerable;⁴ and (6) a four-level increase pursuant to U.S.S.G. § 3B1.1(a) for Levy's role as "an organizer or leader."

From the offense level of thirty-six, the PSI subtracted three levels for Levy's acceptance of responsibility under U.S.S.G. §§ 3E1.1(a) and (b)(1). With a criminal history category of I and a total offense level of thirty-three, Levy's guidelines range of imprisonment was 135 to 168 months.

The PSI noted that, under U.S.S.G. § 5G1.2(d), sentences for multiple offenses should run concurrently unless the maximum sentence for the offense with the highest statutory maximum (here, 120 months for money laundering) is less than the total punishment recommended by the guidelines (here, 135 to 168 months), in which case the sentences should run consecutively only to the extent necessary to produce a sentence equal to the total guideline punishment.⁵ Because the statutory maximum for count 15 was 120 months, but the recommended guideline sentence was 135 to 168 months, the PSI explained that the sentences should run consecutively to the extent necessary to equal the recommended guideline sentence. Ultimately, as explained later, the district court did this and imposed consecutive sentences of ten years on count 15 and four years on count 1 for a total sentence of 168 months.

Prior to the sentencing hearing, Levy's counsel filed written objections to the PSI. Among other items, Levy objected to the PSI's vulnerable victim and role enhancements. In an addendum to the PSI, the probation officer stated:

The information in the role assessment section of the PSI was obtained from the government. According to AUSA Carlton, the information in that section is accurate as written. The AUSA will present additional testimony and evidence if needed.

After the probation officer filed this addendum and before the sentencing hearing, the government filed its Notification of Sentencing Position with the court. The government informed the court that it could not present evidence at the sentencing hearing to support the increased adjustments without violating the plea agreement because it "obligated itself to recommend that any sentence issued by this Court be served concurrently; this contractual obligation limits the government to recommend a sentence not greater than 120 months." The government acknowledged that the probation officer recommended a sentence in excess of 120 months, but explained that it "cannot produce evidence at the sentencing hearing that would support all of these increased adjustments without violating its plea agreement."

In his formal objections to the PSI, Levy stated that, after reviewing the probation officer's written response to his objections to the PSI with the government, the government agreed with his objections to the four-level enhancements for vulnerable victims and role in the offense. Further, Levy contended that he and the government agreed that his role in the conspiracy was better characterized as a "manager or supervisor of criminal activity," which would warrant only a three-level, not a four-level, increase. This computation would make his total offense level 30 and result in a guideline range of 97 to 121 months.

The probation officer filed a second addendum to the PSI and stated that the AUSA advised him that the government must "abide by its sentencing recommendations even in the face of a contradictory presentence investigation report," and that, under United States v. Taylor, the government could not present evidence at the sentencing hearing that "would support both the vulnerable victim adjustment and the adjustment for the defendant's role in the offense." The second addendum further stated that the government "may respectfully decline to present supporting evidence as it deems appropriate to comply with its contractual obligations with the defendant." It concluded that the court "will need to make a factual finding based on the information contained in the presentence investigation report as to whether [the enhancements apply]," and noted that the court "previously upheld the four level enhancement for a large number of vulnerable victims" at the sentencings of Levy's codefendants relying on the same information.

D. Sentencing Hearing

At the sentencing hearing, Levy's counsel again objected (1) to the PSI's conclusion that a vulnerable victim enhancement was appropriate at all, and (2) to the PSI's determination that a...