U.S. v. DeCicco

• Citation: 899 F.2d 1531
• Decision Date: 20 April 1990
• Docket Number: No. 89-2080,89-2080
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl N. DeCICCO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1531

899 F.2d 1531

58 USLW 2675

UNITED STATES of America, Plaintiff-Appellee, v. Carl N. DeCICCO, Defendant-Appellant.

No. 89-2080.

United States Court of Appeals Seventh Circuit.

Argued Jan. 9, 1990.

Decided April 20, 1990.

Thomas M. Daly, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Renee E. Schooley, Federal Public Defender, St. Louis, Mo., for defendant-appellant.

Before COFFEY, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

The defendant, Carl N. DeCicco, entered into a plea agreement with the government in which he pled guilty to four counts of interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314 and Sec. 2 (Counts 1-4) and four counts of wire fraud in violation of 18 U.S.C. Sec. 1342 and Sec. 2 (Counts 5-8). In exchange for his plea, the government recommended in the plea agreement that he receive a sentence at the upper range of the applicable sentencing range based on the parties' calculations under the Sentencing Guidelines. At sentencing, the district court rejected the recommended sentence and sentenced the defendant to a higher sentence according to the Guideline calculations contained in the presentence report. The defendant raises two issues on appeal. He first alleges that he should be allowed to withdraw his guilty plea and plead anew because the trial court failed to comply with the requirements of Rule 11(e) when it accepted his guilty plea. The defendant also challenges the addition of two points to his offense level under the Guidelines based on the determination that he was an "organizer" pursuant to Sec. 3B1.1(c). We affirm the district court's refusal to permit the defendant to withdraw his guilty plea but remand for resentencing because the district court inappropriately determined that the defendant was an "organizer."

I.

The defendant was indicted for operating several schemes in which he fraudulently obtained merchandise using a variety of deceitful tactics. DeCicco entered into a plea agreement with the government in which he pled guilty to four counts of interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314 and Sec. 2 (Counts 1-4) and four counts of wire fraud in violation of 18 U.S.C. Sec. 1342 and Sec. 2 (Counts 5-8). The signed plea agreement, which was submitted to the district court, provided that in exchange for the guilty pleas by the defendant, the government would recommend that he be sentenced at the upper end of the Guideline range from the calculations contained in the plea agreement for Counts 1-3. For Counts 4-8, which occurred prior to the enactment of the Sentencing Guidelines, the government agreed to recommend a sentence of 2 years on each count to run concurrent to each other but consecutive to the Guideline sentence imposed for Counts 1-3.

The plea agreement contained the parties' calculation of the defendant's applicable sentencing range under the Guidelines. The parties agreed that the defendant had an offense level of 12 and that the defendant's role in the offense was that of an organizer pursuant to Sec. 3B1.1(c) of the Guidelines and therefore the offense level should be increased two levels to 14. The agreement further stated that the government recommended a two level reduction for the defendant's acceptance of responsibility pursuant to Sec. 3E1.1(a). Finally, the parties agreed that the defendant had a criminal history category of IV. Based on these calculations, the applicable sentencing range was 21-27 months.

The plea agreement also stated that the defendant understood that the district court did not participate in the plea agreement and was not bound by any recommendations of the government and that the defendant understood that he would not be allowed to withdraw his guilty plea once entered. The district court accepted the defendant's plea.

A presentence report was subsequently prepared which arrived at an applicable sentencing range that was higher than that reached by the parties in the plea agreement. The presentence report calculated the defendant's offense level as 13 and his criminal history category as VI, resulting in an applicable range of 33-41 months. The defendant filed objections to these calculations. The district court granted several of his objections, reducing his criminal history category to V, but denied his objection to the calculation of his offense level which characterized him as an organizer resulting in the addition of two levels to his computation. At sentencing, the district court rejected the parties' recommended sentence in favor of the calculations contained in the presentence report and sentenced the defendant to 37 months on Counts 1-3 (to run concurrently with each other), 5 years on Count 4 (to run concurrently to Counts 1-3), and 5 years on Counts 5-8 (to run concurrently with each other but consecutive to Counts 1-4). The defendant thereby received a sentence of 13 years and 1 month, which was above the 4 year 3 month total recommended by the government in the plea agreement but well within the sentencing ranges provided for in 18 U.S.C. Sec. 1343 and Sec. 2314.

DeCicco raises two claims on appeal. First, he alleges that the district court failed to comply with the requirements of Rule 11 by imposing a sentence materially different from the terms of the plea agreement without advising him at the time of the plea that he would not be allowed to withdraw his plea if the court rejected the plea agreement. Second, he contends that the trial court erred in computing his offense level by adding two points for his role in the offense as an organizer. We address these claims in turn.

A.

Fed.R.Crim.P. 11 contains the procedures governing plea agreements. Subsection (e)(1)(B) permits the government to agree to make a sentencing recommendation to the court with the understanding that such recommendation shall not be binding on the court. Subsection (e)(2) mandates that when the government makes a recommendation pursuant to subsection (e)(1)(B), the court "shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea."

The defendant contends that the district court failed to comply with the requirements of Rule 11(e)(2) by neglecting to inform him that should the court decide to depart from the recommended sentence, the court would not be required to allow him to withdraw his guilty plea. To support his position, DeCicco maintains that the court implied that he would be sentenced within the recommended range by stating to him that "[s]o really I guess the important thing is that you're looking at about four years in the penitentiary here. Maybe a little more, maybe a little less. Do you understand that?" The government concedes that the plea agreement was an (e)(1)(B) agreement and that the dictates of subsection (e)(2) apply, but contends that the requirements of (e)(2) were met, and in the alternative, if they were not, any error was harmless pursuant to Rule 11(h).

While any noncompliance with Rule 11 is reversible error, United States v. Frazier, 705 F.2d 903, 907 (7th Cir.1983) (per curium), the test for reversal on appeal is "whether, looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights." Id.; United States v. Ray, 828 F.2d 399 (7th Cir.1987). We therefore examine all the circumstances surrounding the plea to determine whether the defendant was informed of his rights.

We begin by noting that the defendant has a college education and had sufficient aptitude to carry out the rather complex scheme which resulted in his conviction. The signed plea agreement expressly stated that the defendant "understands that the court did not participate in this plea agreement and is not bound by any recommendations of the Government," and further, that he "will not be allowed to withdraw his plea of guilty once entered." Paragraph 4 stated that the defendant "has been advised and does fully understand ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law ... [and] that if he pleads guilty he will waive his right to persist in a plea of not guilty...." The agreement was signed by the government, DeCicco and his attorney and at sentencing DeCicco stated that he had read the agreement "very carefully" with his attorney and understood its contents. Further, the court specifically told the defendant that the court was not a party to the plea agreement and that the court would "decide what the sentence would be. It may be what's in the [plea agreement]. It may be more than that. It may be less than that." The court also told him that he faced possible exposure of 60 years and several millions of dollars in fines. In short, both the plea agreement and the trial court at sentencing made clear what is required by (e)(2); that the court is not bound by the plea agreement and in the event that the court rejects the agreement, the court will not be required to allow the defendant to withdraw his plea. We find that based on the totality of the circumstances, the defendant was informed of his rights and thus the requirements of Rule 11 were satisfied.

At oral argument, defense counsel urged us to attach talismanic qualities to the precise language of Rule 11(e)(2), in effect arguing that a defendant should not be bound by a plea agreement where the trial court fails to recite the precise language contained in the rule. "While district court's are well advised to precisely track the language of Rule 11," Frazier, 705 F.2d at 906, the failure to do so is not necessarily fatal. "Matters of reality, and not mere ritual, should be controlling." United States v. Wetterlin, 583 F.2d 346, 354 (7th Cir.1978), cert. denied, 439 U.S 1127, 99 S.Ct. 1044, 59 L.Ed.2d 88 (1979). Where, as here, the totality of the circumstances demonstrates that the...