U.S. v. Tropiano

• Decision Date: 17 March 1995
• Docket Number: D,No. 741,741
• Citation: 50 F.3d 157
• Parties: UNITED STATES of America, Appellee, v. Daniel Michael TROPIANO, Defendant-Appellant. ocket 94-1340.
• Court: U.S. Court of Appeals — Second Circuit

Page 157

50 F.3d 157

UNITED STATES of America, Appellee, v. Daniel Michael TROPIANO, Defendant-Appellant.

No. 741, Docket 94-1340.

United States Court of Appeals Second Circuit.

Argued Jan. 11, 1995.

Decided March 17, 1995.

Mark B. Gombiner, New York City (Legal Aid Society, of counsel), for defendant-appellant.

Paul T. Weinstein, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty. for the E. Dist. of N.Y., Julie E. Katzman, Asst. U.S. Atty., of counsel), for appellee.

Before: KEARSE, McLAUGHLIN, and PARKER, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Daniel Tropiano appeals from a judgment of conviction and sentence entered in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge).

Tropiano possessed a stolen Cadillac and another stolen car, each having an altered vehicle identification number ("VIN"). The FBI confiscated the Cadillac and, a week later, conducted an inventory search of it. The search turned up evidence showing that (1) the VIN had been altered and (2) Tropiano was a drug dealer. Tropiano moved to suppress the evidence. The district court denied the motion. Tropiano was later convicted of possessing vehicles with altered VINs. At sentencing, upon the government's motion under U.S.S.G. Sec. 5K2.0, the district court departed upwardly, stating reasons that related to Tropiano's recidivism.

On appeal, Tropiano argues that: (1) the evidence from the Cadillac should have been suppressed because the FBI did not conduct a valid inventory search; and (2) the district court should have imposed the upward departure under U.S.S.G. Sec. 4A1.3, rather than Sec. 5K2.0, since the reasons the district court gave concerned the inadequacy of Tropiano's criminal history category.

Because Tropiano has no standing to object to the search, we affirm the district court's denial of his suppression motion. But, because the district court improperly imposed a 4A1.3 departure in the trappings of a 5K2.0 departure, and because we find no factual basis in the record for a 5K2.0 departure, we vacate his sentence and remand for resentencing.

BACKGROUND

A. The Search and Seizure

An informant tipped FBI agents that Tropiano was running an automobile theft business. According to the informant, Tropiano arranged for cars to be stolen, and then altered their VINs. The agents obtained a search warrant for two premises that Tropiano leased, one a garage, the other a backyard and driveway. In the garage, they found a Cadillac with an altered VIN, which they towed to an FBI garage. At the second site, agents found another car with an altered VIN. Both cars had been stolen.

A week after the Cadillac's seizure, agents opened its locked trunk with a crowbar. Inside, they found the original motor vehicle titles to two other cars; their VINs were the numbers used on the Cadillac and the other stolen car. The agents also found records reflecting a number of cocaine sales, and several items common to street level cocaine dealers: a digital scale, a calculator, a grinder, assorted plastic envelopes, and boric acid and lydocade hypochloride (the usual cutting agents for cocaine). They also found a semi-automatic pistol and ammunition.

B. The Suppression Motion and Trial

Tropiano was charged with altering VINs, in violation of 18 U.S.C. Sec. 511(a), and being a felon in possession of a firearm, in violation At Tropiano's trial, the government relied heavily on the evidence from the trunk of the Cadillac. In addition, one of the government's witnesses, Philip Stines, testified that he obtained the Cadillac from Tropiano, who told him it had been stolen. Acting under Tropiano's instructions, Stines insured the Cadillac, gave it back to Tropiano, reported it stolen, and collected the insurance proceeds. Stines gave $1,000 of the proceeds to Tropiano.

of 18 U.S.C. Sec. 922(g)(1). He moved to suppress the evidence seized from the trunk of the Cadillac, contending that there was no warrant to search the Cadillac and that a purported inventory search was invalid because the FBI did not conduct it under a standardized procedure. The district court denied the motion to suppress, ruling from the bench that the search was "part of the routine of the FBI, and the delay was due to the burden of other matters. They came to it as soon as they could."

C. The Presentence Report

Tropiano was convicted of the VIN count but acquitted of the gun possession count. His presentence report ("PSR") assigned a base offense level of eight, under U.S.S.G. Sec. 2B6.1. It bumped that up six levels under U.S.S.G. Secs. 2B6.1(b)(1) and 2F1.1(b)(1)(G), because the total loss was over $80,000, and two more levels under U.S.S.G. Sec. 2B6.1(b)(2), because Tropiano was in the business of receiving stolen property.

Next, the PSR placed Tropiano in Criminal History Category III, on the basis of a 1985 petty larceny conviction and a 1986 cocaine possession conviction. These convictions gave him four criminal history points. (Since 1986, Tropiano had no other convictions, although he was arrested for drunk driving.)

The resulting sentencing range was 27-33 months. The PSR added, however, that the court might wish to depart upward on the basis of the evidence of drug trafficking found in the Cadillac's trunk.

D. The Fatico Hearing

The government accepted the PSR's invitation and moved for an upward departure under U.S.S.G. Sec. 5K2.0 on the basis of uncharged conduct--Tropiano's drug trafficking. The district court conducted a Fatico hearing to determine if there was enough evidence to support the departure. See United States v. Fatico, 579 F.2d 707 (2d Cir.1978), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980). At the hearing, three witnesses testified for the government.

First, Stines testified that he regularly purchased cocaine from Tropiano. Stines also testified that the $1,000 he gave to Tropiano after the insurance scam was to settle a cocaine debt he owed Tropiano. In addition, Stines described how Tropiano ground up cocaine and put it in plastic bags for sale. Stines also identified the scale seized from the Cadillac's trunk as the type he had seen Tropiano use. Stines' testimony was buttressed by records in the Cadillac revealing many sales to someone named "Phil," presumably, Stines.

Next, an FBI agent, Pedro Ruiz, testified that the scale, calculator, plastic envelopes, grinder, and cutting agents found in the Cadillac's trunk were the tools of the trade of street level cocaine dealers. He further testified that the records found in the Cadillac's trunk reflected the sale of over a kilogram of cocaine over a several year period.

Finally, another FBI agent, Martin Finn, testified about a stolen and retagged van recovered during the investigation of Tropiano. Finn recounted his interview with one of Tropiano's associates, Salvatore Marchese, who admitted to registering the stolen van for Tropiano in exchange for a $300 reduction of his cocaine debt to Tropiano. (A title to the van, in Marchese's name, was recovered from the Cadillac, and Marchese's name appeared in the drug records.) Finn also testified that the total value of the vehicles recovered during the investigation of Tropiano was at least $42,900.

E. The Sentencing

At the conclusion of the Fatico hearing, the district court ruled that the total loss involved in the offense was at least $42,900, rather than the $80,000 reflected in the PSR. Accordingly, it lowered Tropiano's adjusted Next, the district court found that Tropiano "was involved in a whole series of narcotics transactions" and that "[t]he car deals were part of these transactions." It concluded that Tropiano needed to be incarcerated to prevent him from committing more crimes. The court noted:

offense level to fifteen, resulting in a guideline range of 24-30 months. The district court also held that because Tropiano had been acquitted of gun possession, it would not consider the weapon seized from the Cadillac in determining the sentence.

The Defendant is a confirmed recidivist. He's 25 years old, he's at the peak of his criminal career, and he has to be sentenced primarily for incapacitation because the Court is convinced that he will continue with serious criminal conduct when he's out of prison.

Without further explanation (and without stating whether it was departing under Sec. 5K2.0, for aggravating circumstances, or under Sec. 4A1.3, for criminal history), the district court increased Tropiano's offense level from fifteen to twenty-two, raising the sentencing range to 51-63 months. The district court then sentenced Tropiano to 60 months' imprisonment, the statutory maximum. The district court added three years' supervised release and a $50,000 fine.

The district court rejected Tropiano's application for bail pending appeal. It explained:

Based on [Tropiano's] prior conduct, my observation of him throughout the trial, his lack of contrition, his continuing activities even after arrest ..., I believe he's a confirmed recidivist, and as I said he's at the height of his criminal powers and will be engaged in criminal conduct.

....

... I believe that he will continue to be a danger to the community until his energy as a criminal decreases. That normally begins to decrease after the age of 25. A person like this continues to be a danger, serious danger up to about the age of 40.

So, if I could have sentenced him to ten years, I would have sentenced him to ten years. Because I think that incarcerating him until he's in his late thirties would provide sufficient protection.

He's now 27. That will mean that he's released at about age 31. Thirty-one and a half.

Sorry, I can't do anything more for him. He's a vicious and arrogant criminal, in my opinion.

The district court summed up by saying:

[Tropiano] was engaged in substantive narcotics sales, he was engaged in [the] re-marking of these vehicles, he was engaged in extensive use of false...