U.S. v. Minicone
| Citation | 994 F.2d 86 |
| Decision Date | 21 May 1993 |
| Docket Number | D,Nos. 447 and 448,s. 447 and 448 |
| Parties | UNITED STATES of America, Appellant-Cross-Appellee, v. Jack J. MINICONE, Jr., also known as Jake, Defendant-Appellee-Cross-Appellant. ocket 92-1340 and 92-1341. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Kevin E. McCormack, Asst. U.S. Atty., Syracuse, NY (Gary L. Sharpe, U.S. Atty. for N.D.N.Y., Syracuse, NY, of counsel), for appellant-cross-appellee.
John A. Cirando, Syracuse, NY (Emil M. Rossi, D.J. & J.A. Cirando, Syracuse, NY, of counsel), for defendant-appellee-cross-appellant.
Before PIERCE, MINER and McLAUGHLIN, Circuit Judges.
The government appeals from an amended judgment of conviction, imposed on June 5, 1992, in the United States District Court for the Northern District of New York, Munson, Judge, which sentenced Jack J. Minicone, Jr. to 379 months' imprisonment, three years' supervised release and ordered him to pay a special assessment of $100. 1
For the reasons set forth below, we vacate the judgment of the district court and remand for resentencing in accordance with this opinion.
The extensive factual background of this case is set forth in our previous opinion, United States v. Minicone, 960 F.2d 1099, 1102-05 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1511, 117 L.Ed.2d 648 (1992) ("Minicone I "), familiarity with which is presumed. We deal only with those facts relevant to the disposition of this appeal.
In June 1990, Minicone was convicted of two counts of criminal racketeering, in violation of 18 U.S.C. §§ 1962(c) and (d) and 1963, following a jury trial in the United States District Court for the Northern District of New York. The racketeering acts involved, inter alia, the murder of one Albert Marrone. Prior to the imposition of sentence and in accordance with the United States Sentencing Guidelines ("Guidelines"), a Presentence Report ("PSR") was prepared by the Probation Office, which recommended that there be no adjustment for Minicone's role in the Marrone homicide; the PSR stated that although "an argument could be made that Minicone [and two of his four co-defendants] are all deserving of an upward adjustment for their role in the offense, we are not inclined to enhance the guideline score of Minicone." The PSR calculated Minicone's Combined Offense Level to be 43, and his Criminal History to be Category II. The PSR reported that "the Guideline Imprisonment Range is Life."
At the original sentencing hearing held on December 28, 1990, and continued on January 2, 1991, Minicone moved for a downward departure claiming that his role in the murder of Marrone was minor or minimal. The district court denied this motion and calculated Minicone's Combined Offense Level to be 43 and his Criminal History Category to be II, resulting in a Guidelines' range of life in prison. The court then sentenced Minicone to consecutive terms of imprisonment of 151 months on Count One and 240 months on Count Two, for a total of 391 months' imprisonment, followed by three years' supervised release. The sentence represented a downward departure from the Guidelines' calculations. After imposing the sentence, the district judge stated that he was departing from the Guidelines' calculations to "avoid what the Court consider[ed] a grave sentencing disparity among co-Defendants[,] who had similar roles in the murder of Marrone." 2
Minicone and his four co-defendants appealed from their convictions and sentences. The government cross-appealed from the sentence of Minicone. This Court affirmed the convictions of the appellants, Minicone I, 960 F.2d at 1102, and rejected all of Minicone's claims of sentencing error, including that he was "a minor or minimal participant in the crimes charged." Id. at 1110. However, we concluded that, as argued by the government, the district court abused its discretion in granting Minicone a downward departure to avoid a disparity between his sentence and that of his co-defendants. Id. at 1111-12. Accordingly, the case was remanded for the limited purpose of resentencing Minicone in accordance with the Guidelines. Id. at 1112.
The resentencing occurred on June 5, 1992, at which time Minicone's counsel requested that the court reconsider the adjustment requests made at the time of the original sentencing. In response to the court's inquiry as to whether there was "anything new factually" that the defendant wished to relate to the court, Minicone's counsel responded that Minicone had maintained a good record while incarcerated. No other facts were presented to the court, although argument ensued as to whether Minicone was entitled to a downward departure pursuant to § 5K2.10 of the Guidelines, which requires consideration of the victim's--in this case, Marrone's--alleged misconduct.
The court denied Minicone's request for a downward departure based upon Marrone's alleged misconduct. However, upon reviewing the entire case, the court found that a downward departure was warranted due to Minicone's limited role in the Marrone homicide. The court premised its ruling upon the facts presented at trial, and the government's statement in its original sentencing memorandum that "Minicone was a worker who had very little status in the enterprise." Accordingly, Minicone was granted a downward departure of two points, which brought his Combined Offense Level to 42. This downward departure to Offense Level 42, in conjunction with Minicone's Criminal History Category of II, resulted in a Guidelines' imprisonment range of 360 months to life. The court then sentenced Minicone to a total of 379 months in prison, which is one year less than his original prison sentence of 391 months. The government now appeals from that decision.
On appeal, the government maintains that the district court's decision to reconsider and reverse its earlier ruling concerning Minicone's role in the Marrone homicide violated the "law of the case" doctrine. In reply, Minicone argues that the district court's reconsideration was entirely appropriate because this Court did not, in its disposition of the earlier appeal, determine the extent of Minicone's participation in Marrone's murder.
The "law of the case" doctrine mandates, as relevant here, that where issues have been explicitly or implicitly decided on appeal, the district court is obliged, on remand, to follow the decision of the appellate court. See United States v. Cirami, 563 F.2d 26, 32-33 (2d Cir.1977). In other words, the trial court is "barred from reconsidering or modifying any of its prior decisions that have been ruled on by the court of appeals." United States v. Uccio, 940...
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