U.S. v. Amedeo

• Decision Date: 24 May 2007
• Docket Number: No. 05-11806.,05-11806.
• Citation: 487 F.3d 823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damon AMEDEO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

487 F.3d 823

UNITED STATES of America, Plaintiff-Appellee, v. Damon AMEDEO, Defendant-Appellant.

No. 05-11806.

United States Court of Appeals, Eleventh Circuit.

May 24, 2007.

Joseph Aaron Bondy, New York City, for Amedeo.

Harriett R. Galvin, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK, BARKETT and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Damon Amedeo appeals his 120-month sentence following a guilty plea to one count of cocaine distribution on the grounds that (1) the district court should have recused itself from his resentencing; (2) the sentence violated the mandate rule; (3) the sentence violated 18 U.S.C. § 3742(g); (4) his due process rights were violated by the retroactive application of Booker; and (5) the sentence was unreasonable. For the reasons that follow, we affirm.

I. Background

On February 7, 2002, Amedeo was arrested in connection with the death of Douglas Rozelle III.¹ He was later charged in a nine-count superceding indictment with one count each of unlawful drug use while in possession of a firearm, 18 U.S.C. § 922(g)(3); distribution of cocaine to a minor, 21 U.S.C. § 859; cocaine distribution, 21 U.S.C. § 841; possession with intent to distribute marijuana, 21 U.S.C. § 841; and five counts of distribution of marijuana to a minor, 21 U.S.C. § 859. Pursuant to a plea agreement, Amedeo pleaded guilty to the count of distributing cocaine to a minor, 21 U.S.C. § 859(a), and the Government dropped the remaining charges.

After the sentencing hearing on February 13, 2003, the district court sentenced Amedeo to 216 months' imprisonment and eight years of supervised release, based on an offense level of 37; a criminal history category of I; and enhancements for vulnerable victim, U.S.S.G. § 3A1.1, abuse of trust, § 3B1.3, and obstruction of justice, § 3C1.1. The sentence also included upward departures on the grounds that: (1) Amedeo committed the offense to facilitate a sexual assault on Rozelle, § 5K2.9; (2) Amedeo's offense resulted in Rozelle's death, § 5K2.1; (3) Amedeo engaged in extreme conduct by failing to seek medical help for Rozelle and by having unprotected sex with Rozelle despite being infected with hepatitis C, § 5K2.8; and (4) Amedeo distributed drugs to multiple minors, § 5K2.0. The district court denied Amedeo's request for a reduction based on acceptance of responsibility pursuant to § 3E1.1(a).

Amedeo appealed the sentence to this court, and on May 28, 2004, this court affirmed in part, vacated in part, and remanded for further proceedings. United States v. Amedeo, 370 F.3d 1305, 1325 (11th Cir.2004) ("Amedeo I"). Specifically, this court affirmed all of the enhancements and the denial of the acceptance-of-responsibility reduction. Id. at 1316-21. This court vacated the upward departures under §§ 5K2.0, 5K2.1, 5K2.8,² and 5K2.9, on the grounds that: Amedeo's November 2001 sexual assault on Rozelle, his drug use with minors other than Rozelle, his January 2002 sexual encounters with Rozelle, and Rozelle's death were beyond the scope of "relevant conduct" for purposes of § 1B1.3, as these incidents did not constitute a "common scheme or plan" in connection with Amedeo's offense of conviction. Amedeo I, 370 F.3d at 1313-24.

On August 2, 2004, the district court issued a Burns³ notice indicating its intention to consider on remand a departure under U.S.S.G. § 4A1.3 (underrepresentation of criminal history). Anticipating a forthcoming decision by the Supreme Court addressing the applicability of Blakely⁴ to the Sentencing Guidelines, Amedeo filed a motion for a continuance, which the district court granted.

On January 12, 2005, the Supreme Court issued its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held, inter alia, that the Sentencing Guidelines could not be imposed in a mandatory manner, but that sentencing courts were required to consider the Guidelines along with other statutorily relevant factors. Id. at 258-67, 125 S.Ct. at 764-69. The Booker Court also held that this remedial holding was to be applied to cases pending on direct review. Id. at 268, 125 S.Ct. at 769. On February 1, 2005, the district court issued an amended notice of its intent to consider a departure under § 4A1.3 based on Amedeo's sexual contact with Rozelle. Prior to the resentencing hearing, Amedeo filed a motion requesting that the district judge recuse himself, which the court denied.

At the resentencing hearing on March 11, 2005, the district court calculated the Guidelines range at 37-46 months, decided not to impose an upward departure, and found that the Guidelines range did not reflect the seriousness of the crime in light of 18 U.S.C. § 3553(a). The court held that Booker constituted an exception to the mandate rule, as it was an intervening "radical change in the law governing sentencing guideline applications" that required the court to apply the Guidelines in an advisory manner by imposing a reasonable sentence in light of § 3553(a). The court then imposed a sentence of 120 months' imprisonment.

II. Discussion

A. Recusal from Resentencing

On appeal, Amedeo argues that the district court erred in failing to recuse itself for his resentencing. We review a judge's decision not to recuse for an abuse of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.2004).

Section 455 of Title 28 of the U.S. Code creates two conditions for recusal. United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.2003). First, § 455(a) provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). Under § 455(a), recusal is appropriate only if "an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." Patti, 337 F.3d at 1321 (citation omitted). And "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994) (citation omitted).

Second, § 455(b) provides that a judge also shall disqualify himself where, inter alia, he actually "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28, U.S.C. § 455(b)(1) (emphasis added). The bias or prejudice "must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case." McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990) (citation omitted). "[O]pinions held by judges as a result of what they learned in earlier proceedings" do not constitute bias or prejudice. Liteky, 510 U.S. at 551, 114 S.Ct. at 1155. Thus, "[i]t has long been regarded as normal and proper for a judge to sit in the same case upon remand, and to sit in successive trials involving the same defendant." Id.

Here, Amedeo asserts both that there was an appearance of impartiality and that there was actual bias on the part of the district court. He argues that a fully-informed lay observer might reasonably conclude that the district court intended to sentence him above his Guidelines range without regard to what was authorized by law, as evidenced by, inter alia, (1) the public nature of the initial sentencing, (2) this court's rejection of two of the district court's upward departures, (3) the district court's consideration on remand of new upward departures, and (4) the district court's use of § 3553(a) to impose an upward variance on the same factual bases it had used to support the upward departures this court had rejected in Amedeo I. He also contends that the district court's use of § 3553(a) at resentencing was a pretextual means of sentencing him above the Guidelines range, thereby demonstrating the district court's bias. We disagree.

First, regarding Amedeo's initial sentencing, this court observed that "[i]t is clear the district court conducted the [original] sentencing proceedings with the utmost care and sensitivity to the parties, and grappled rigorously and conscientiously with the challenging issues presented." Amedeo I, 370 F.3d at 1325. And although both Amedeo's initial sentence and this court's overturning of that sentence were "public events," nearly all federal judicial proceedings are public and most district courts have some of their rulings overturned on appeal. The fact that the district court on remand continued to view Amedeo's conduct as sufficiently serious to warrant a sentence above the Guidelines range was not improper. Indeed, "[i]f the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." Liteky, 510 U.S. at 551, 114 S.Ct. at 1155. Again, "opinions held by judges as a result of what they learned in earlier proceedings" do not constitute bias or prejudice. Id. Nothing in the record demonstrates that the district court had developed a personal or extrajudicial bias against Amedeo (pursuant to § 455(b)(1)), see McWhorter, 906 F.2d at 678, or that a fully-informed lay observer would entertain a significant doubt about the district judge's impartiality (pursuant to § 455(a)), see Patti, 337 F.3d at 1321. Accordingly, we conclude that the district judge's decision not to recuse himself was not an abuse of discretion.

B. The Mandate Rule

Amedeo next argues that the district court's imposition of a sentence above the Guidelines range violated this court's mandate in Amedeo I because the district court considered conduct beyond the offense of conviction, namely Amedeo's November 2001 sexual assault on Rozelle, his drug use with minors other than Rozelle, his January 2002 sexual encounters with Rozelle, and Rozelle's death. Whether the...