United States v. Petri

• Decision Date: 12 April 2013
• Docket Number: No. 11–30337.,11–30337.
• Citation: 731 F.3d 833
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Dan PETRI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

731 F.3d 833

UNITED STATES of America, Plaintiff–Appellee,

v.Dan PETRI, Defendant–Appellant.

No. 11–30337.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 4, 2012.

Filed Feb. 8, 2013.

Amended April 12, 2013.

Michael Filipovic, Assistant Public Defender, and Alan Zarky (argued), Research Attorney, Federal Public Defender's Office, Seattle, WA, for Defendant–Appellant.

Steven Masada (argued), Assistant United States Attorney, Seattle, WA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Western District of Washington, Robert S. Lasnik, District Judge, Presiding. D.C. No. 2:11–cr–00016–RSL–2.

Before: MARY M. SCHROEDER, M. MARGARET McKEOWN, and RICHARD C. TALLMAN, Circuit Judges.

ORDER

The Opinion filed on February 8, 2013, is amended as follows:

Slip opinion page 11, line 21: At the end of this paragraph, insert the following sentence: Rule 32 covered only objections to the presentence report, and the Advisory Committee made clear that the 2002 amendments were not intended to change the meaning of Rule 32 in ways other than explained in the notes. SeeFed.R.Crim.P. 32 advisory committee's note (“These changes are intended to be stylistic only, except as noted below.”).>

With this amendment, the panel has voted to deny the petition for panel rehearing; Judges McKeown and Tallman have voted to deny the petition for rehearing en banc and Judge Schroeder so recommends.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No future petitions for rehearing or petitions for rehearing en banc will be entertained.

OPINION

TALLMAN, Circuit Judge:

A full decade after an amendment to Rule 32 of the Federal Rules of Criminal Procedure, we are asked for the first time to determine whether the amendment represented a vast expansion of the district court's fact-finding responsibilities at sentencing. The defendant, who pleaded guilty to aggravated identity theft and two other counts in connection with an ATM skimming scheme, insists that Rule 32(i)(3)(B) extends the district court's fact-finding responsibility to all matters controverted, no matter how they are presented, throughout the entire sentencing phase. The rule's context and history, though, strongly suggest otherwise and demonstrate an intent to narrow the rule's scope to only those factual objections to the presentence report that have the potential to affect the sentence. Because we cannot square this strong evidence of legislative purpose with the defendant's broad interpretation, we affirm.

I

A

Defendant Dan Petri, along with at least two co-conspirators, engaged in a scheme to skim account information and personal identification data from ATMs. By attaching a card reader and a camera to an ATM, they would capture a customer's account information and PIN. That information allowed the creation of counterfeit bank cards, which were then used to withdraw funds from customers' accounts.

The government's evidence demonstrated that Petri had placed and removed card readers and cameras on various ATMs in the Seattle area on eleven different occasions between September 25 and November 30, 2010. Petri and his co-conspirators obtained $276,836.02 from more than 300 individual victims. Petri does not contest that he was directly involved in installing the skimming equipment on ATMs and that he made multiple withdrawals of large sums of cash in aid of this criminal enterprise. However, he claims that he received little of the profits and that he was coerced into participating by the ringleader, a man named “Sorin” who has yet to be apprehended.

Petri was indicted on January 19, 2011, and an 18–count Superseding Indictment followed on May 12, 2011. A month before trial, Petri pleaded guilty to three counts: Bank Fraud, Conspiracy to Commit Access Device Fraud, and Aggravated Identity Theft.

B

In the presentence report, the probation officer recommended against granting a minor role reduction for Petri, whom she found to be an “average participant [ ]” in the offense. Before sentencing, Petri's counsel objected to this recommendation in the report. Petri argued that he and his co-defendant were used by the more sophisticated individuals in the scheme, including a man named “Sorin,” whom Petri identified as the ringleader. Petri also argued that he had received very little of the proceeds, suggesting that his role was that of a minor participant. The probation officer responded that Petri's “repeated involvement” showed that his role was “essential” and that he was therefore an “average participant.” She added that she “had no information as to how much the defendant and other coconspirators made during this offense.”

Petri's sentencing memorandum repeated his assertion that he “made very little profit from this endeavor.” It also raised a claim that “Sorin,” the putative missing mastermind, had coerced Petri into committing the crime. Counsel argued in his written memorandum that Petri claimed Sorin had helped him gain entry to the United States and then tricked Petri into using a counterfeit card the first time. After that, he allegedly “pressed Petri ... to assist him in the criminal activity” by threatening to go to the police and have him deported. The sentencing memorandum further claimed that “Petri ... feared Sorin” and that Petri and another conspirator “had observed [Sorin] carrying a weapon. While his threats were not overt, i.e., by pointing a weapon at them, the implication to both of them was clear—they would be physically harmed if they did not go along with Sorin's plan.” Petri did not cite any evidentiary support for these claims in his memorandum. Nor did the defense offer Petri's testimony or any other witnesses to establish these assertions at the sentencing hearing.

At the sentencing hearing, Petri's counsel again invoked the alleged co-conspirator “Sorin.” Defense counsel argued that recently discovered documents, not in evidence, established that Sorin was the major player in the scheme and that Petri had limited involvement. Counsel also claimed that Petri made “slightly less than $20,000 of wire transfers,” and that “[h]e's getting very little money out of this.”

The government responded that because the wire transfers were to Petri's native Romania, there was no way to confirm the veracity of his claim and that all that could be said was that proceeds of his criminal activities, beyond reach for restitution to his victims, would be waiting for Petri when he was deported after completion of his federal prison sentence. As for Petri's claims of coercion, the government could only say that it was still seeking the whereabouts of the mysterious “Sorin.”

At the conclusion of the sentencing hearing, the district court imposed its sentence. After concluding that the offense was “very serious,” the court determined that Petri's role, while not that of a “leader or a ringleader,” was “very, very active.” The court declined to apply a minor role reduction, as Petri had requested in counsel's written and oral objections to the presentence report. The district judge ruled:

But I do think that, while I am not going to grant him a minor role adjustment, I take the role into account in saying that it justifies a somewhat lower sentence than the guidelines would call for.

I believe that what is appropriate, considering all of the 3553 factors here, is to leave the guideline range at offense level 24, criminal history category 1, which is a guideline range of 51 to 63 months.

But I'll depart downward from that to a sentence of 36 months on Counts 3 and 7, to run concurrently, but consecutive to the 24 months on Count 17, for punishment to take into consideration the amount of loss, the role that Mr. Petri played, the fact that he will be deported, the fact that, as a deportable alien, he is not allowed to program in the same way that other people can in the prison situation, and that, under the circumstances, I believe the total sentence of 60 months, or five years, is appropriate.

The 60–month sentence fell 15 months short of the low end of the Guidelines range the district court ultimately settled upon and 27 months below the minimum sentence cited in the written plea agreement's preliminary Guidelines calculation. Petri timely appealed the judgment. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

II

Petri urges us to adopt a broad reading of Federal Rule of Criminal Procedure 32(i)(3)(B), which was amended specifically in 2002 to narrow its reach. Because the structure of the rule and the intent of its drafters demonstrate that a “controverted matter” extends only to objections to the presentence report that make a difference in the formulation of an appropriate sentence, we affirm.

A

At sentencing, the district court has at its disposal “a wide variety of information that could not be considered at trial.” United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). This evidentiary flexibility creates a constitutional concern: if the information is materially false or unreliable, the district court's reliance on it may violate a defendant's due process rights. Id. In 1983, the Supreme Court (without any subsequent congressional revision) promulgated a revised Rule of Criminal Procedure to help alleviate this concern. United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984) (discussing former Rule 32(c)(3)(D)); see also Rules Enabling Act, 28 U.S.C. §§ 2071–72.

The 1983 revision, from which the rule at issue in this case descended, “require[d] the district court, in entertaining a challenge to a presentence report, either to decide the challenge on the merits, or to state that no finding is necessary because the court will not rely on the controverted information.” Ibarra, 737 F.2d...