U.S. v. Marrone

• Citation: 48 F.3d 735
• Decision Date: 23 February 1995
• Docket Number: 93-5740,Nos. 93-5738,s. 93-5738
• Parties: UNITED STATES of America v. John MARRONE, a/k/a Johnny Moose, John Marrone, Appellant. UNITED STATES of America v. Michael PARIS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 735

48 F.3d 735

63 USLW 2607

UNITED STATES of America v. John MARRONE, a/k/a Johnny Moose, John Marrone, Appellant.

UNITED STATES of America v. Michael PARIS, Appellant.

Nos. 93-5738, 93-5740.

United States Court of Appeals Third Circuit.

Argued Jan. 24, 1995.

Decided Feb. 23, 1995.

Sur Petition for Rehearing in 93-5738 March 23, 1995.

Sur Petition for Rehearing in 93-5740 March 28, 1995.

John C. Whipple (argued), Whipple, Ross & Hirsch, Parsippany, NJ, for appellant John Marrone.

Richard F.X. Regan (argued), Hayden, Perle & Silber, Weehawken, NJ, for appellant Michael Paris.

Faith S. Hochberg, U.S. Atty., Leslie F. Schwartz (argued), and Victor Ashrafi, Newark, NJ, for appellee.

Before: SLOVITER, Chief Judge, LEWIS and WEIS, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

John Marrone and Michael Paris appeal from sentences imposed following their convictions on RICO and gambling offenses. They were indicted, tried, and convicted with six other defendants, all of whom were associated with the Genovese Crime Family (GCF). Though all defendants appealed, this opinion addresses only certain sentencing issues raised by Marrone and Paris. ¹ Specifically, Paris argues that a RICO predicate act for which he was previously convicted should not have been used as the basis for added criminal history points. In Marrone's case, the predicate act was not used for criminal history points, but to determine his status as a career offender. He contends this was improper. We will discuss their contentions separately but in one opinion because the legal issues overlap.

We have jurisdiction under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742. To the extent that defendants challenge the district court's legal interpretation of the Sentencing Guidelines, we exercise plenary review. United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir.1990).

I. PARIS--CRIMINAL HISTORY POINTS

The indictment charged that Paris was an "associate" of the GCF, subordinate to defendant Salvatore Lombardi, a "caporegime" in the GCF. After a jury trial, Paris was convicted on several counts, including conspiracy to conduct and participate in the conduct of the GCF's affairs through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(d) (Count 1); conducting and participating in the conduct of the GCF's affairs through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c) (Count 2); and various gambling offenses not at issue in this appeal.

Paris had been previously convicted for a predicate act charged in Count 2. Specifically, the indictment charged Paris with an attempted bribery to which he pled guilty in New York state court on February 26, 1992 and for which he was sentenced to one to three years imprisonment. In convicting Paris on Count 2, the jury found this predicate act proven by special interrogatory.

The district court did not factor the attempted bribery into Paris' base offense level. Instead, the court assessed three criminal history points against Paris under U.S.S.G. Sec. 4A1.1(a), which placed him in criminal history category II. The court then sentenced Paris to 57 months imprisonment running consecutively to his state bribery sentence, followed by three years supervised release, plus a fine of $7500 and a special assessment of $250.

In sentencing a RICO defendant, the district court must apply "the offense level applicable to the underlying racketeering activity" or an offense level of 19, whichever is greater. U.S.S.G. Sec. 2E1.1. The district court found that Paris' underlying conduct, apart from the attempted bribery, resulted in an offense level of 17, and therefore assigned him a base offense level of 19. The court also assessed a three level increase for Paris' managerial and supervisory role, giving him a total offense level of 22.

In arriving at a defendant's criminal history, a district court must add three criminal history points "for each prior sentence of imprisonment" exceeding 13 months. U.S.S.G. Sec. 4A1.1(a). The Guidelines define "prior sentence" as "any sentence previously imposed upon adjudication of guilt ... for conduct not part of the instant offense." Id. Sec. 4A1.2(a)(1) (emphasis added). The commentary to section 4A1.2 explains that a prior sentence is one "imposed prior to sentencing on the instant offense.... A sentence imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense." Id. Sec. 4A1.2, comment. (n. 1).

Paris argues that because the bribery was included as a predicate act, it was part of the "instant offense" and therefore should not have been the basis of criminal history points. ² The district court was not persuaded that the bribery conduct should be encompassed for sentencing purposes into the "instant offense" and instead treated it as a prior sentence. It relied on commentary to section 2E1.1 (Racketeering) which discusses when conduct is to be assigned to criminal history rather than to the "instant offense." Under that commentary, conduct charged as part of the "pattern of racketeering activity" that was the subject of an earlier conviction and sentence should be treated as a "prior sentence" under section 4A1.2(a)(1) (referring to Instructions for Computing Criminal History) and not as part of the "instant offense" if the defendant was convicted for that conduct before the "last overt act of the instant offense." See U.S.S.G. Sec. 2E1.1, comment. (n. 4) (hereafter Application Note 4). ³

We are bound by "commentary in the Guidelines Manual that interprets or explains a guideline ... unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993). We must therefore determine whether Application Note 4, under which certain sentences imposed for conduct underlying a RICO conviction are treated as "prior sentences" for criminal history purposes, is inconsistent with section 4A1.2(a)(1).

In a series of cases, albeit in another context, we have noted that Congress did not intend "RICO to be a substitute for the predicate offense," but instead "intended to create separate offenses for the predicate acts and the substantive RICO charge." United States v. Esposito, 912 F.2d 60, 63-64 (3d Cir.1990), cert. dismissed, 498 U.S. 1075, 111 S.Ct. 806, 112 L.Ed.2d 1032 (1991); see also United States v. Grayson, 795 F.2d 278, 283 (3d Cir.1986) ("Congress, in enacting RICO, sought to allow the separate prosecution and punishment of predicate offenses and a subsequent RICO offense."), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 978, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 505 (1987); United States v. Riccobene, 709 F.2d 214, 232 (3d Cir.) ("The predicate offenses ... are not themselves the RICO violation[;] they are merely one element of the crime. [RICO] does not prohibit the commission of the individual racketeering acts. Rather, it bans the operation of an on-going enterprise by means of those acts."), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983).

Similarly, for criminal history purposes, the Sentencing Commission has clarified that a RICO violation should be considered separate from any previously convicted predicate act. See U.S.S.G. App. C, amend. 142 (Application Note 4 added "to clarify the treatment of certain conduct for which the defendant previously has been sentenced as either part of the instant offense or prior criminal record"). Although a predicate act constitutes an element of a RICO violation, the previously convicted RICO offender is in effect a repeat offender who breaks the law once by committing a predicate act and again by engaging in a pattern of racketeering activity. The Sentencing Commission has declared that a repeat offender "is more culpable than a first offender and thus deserving of greater punishment," and that "[r]epeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation." U.S.S.G. Ch. 4, Part A, intro. comment.

The Commission accordingly provided that where a defendant has previously been convicted for a RICO predicate act, that conviction should be factored into the defendant's criminal history score rather than the base offense level. Cf. U.S.S.G. Sec. 2D1.5, comment. (n. 3) (if a conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 is supported by conduct for which the defendant has previously been sentenced, "[a] sentence resulting from a conviction sustained prior to the last overt act of the instant offense is to be considered a prior sentence under Sec. 4A1.2(a)(1) and not part of the instant offense").

Apparently no appellate court has addressed this issue in an opinion in the RICO context. However, in United States v. Crosby, 913 F.2d 313, 315 (6th Cir.1990), the court sustained the Commission's approach in the context of the guideline on continuing criminal enterprise, saying: "If a conviction occurs while the criminal enterprise is continuing, a court should include the sentence resulting from that conviction in the criminal history for calculating the sentence for involvement in a continuing criminal enterprise.... The sentencing guidelines reflect the unique nature of a continuing criminal enterprise by including prior sentences in the defendant's criminal history, even if the prior sentences are for crimes committed in furtherance of the continuing criminal enterprise." Cf. United States v. Minicone, 960 F.2d 1099, 1111 (2d Cir.) (government unsuccessful in arguing that district court erred in assessing prior conviction of RICO defendant only in calculating criminal history and not in calculating base offense level; "district court reasonably construed Note 4...