U.S. v. Amedeo

• Decision Date: 28 May 2004
• Docket Number: No. 03-11252.,03-11252.
• Citation: 370 F.3d 1305
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damon AMEDEO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

370 F.3d 1305

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

No. 03-11252.

United States Court of Appeals, Eleventh Circuit.

May 28, 2004.

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Joseph Aaron Bondy, New York City, for Defendant-Appellant.

Bruce Reinhart, West Palm Beach, FL, Anne R. Schultz, U.S. Atty., Miami, FL, for Plaintiff-Appellee.

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

Before BLACK, BARKETT and STAHL,^*, Circuit Judges.

STAHL, Circuit Judge:

Defendant-appellant Damon Amedeo appeals from his sentence following a guilty plea to one count of distribution of cocaine to a person under twenty-one years of age, in violation of 21 U.S.C. § 859(a). We hold that the district court erred in upwardly departing from the Sentencing Guidelines, and remand for further sentencing proceedings.

I. BACKGROUND

A. Factual history

Evidence presented at the sentencing hearing established the following: In May, 2001, Amedeo met Douglas Rozelle III. At that time, Amedeo was a 29-year-old attorney and Rozelle was an eighteen-year-old student. Rozelle's father, an attorney, had hired Amedeo to work at his law firm beginning the previous month. After Rozelle's arrest for possession of marijuana and Xanax, Rozelle's father arranged for Amedeo to represent his son. These charges resulted in Rozelle's enrollment in a pretrial intervention program. Amedeo accompanied Rozelle to his first drug treatment appointment, where the therapist informed Amedeo that Rozelle had a "serious problem."

Subsequently, Amedeo and Rozelle began spending a great deal of time together. Rozelle's father, aware of only some of the meetings, was reassured by Amedeo that he would not allow young Rozelle to use drugs. Over the next several months, however, Amedeo and Rozelle together used cocaine, marijuana, and various pills. According to witnesses at the sentencing hearing, Rozelle often used and distributed drugs in his college dorm, some of which were supplied by Amedeo. Rozelle had independent sources as well. Several of Rozelle's friends, all between the ages of nineteen and twenty-one, used marijuana with Amedeo and Rozelle at Amedeo's apartment.

During the fall of 2001, Rozelle's parents, who were divorced, expressed concern that their son was using drugs again. In particular, Rozelle's mother suspected that Rozelle was drug-impaired when he and Amedeo visited her on Thanksgiving. She told her ex-husband of her concerns, who in turn spoke to Amedeo. Amedeo assured Rozelle's father than Rozelle was not using drugs. In November, 2001, Rozelle was diagnosed with depression and was prescribed Celexa.

In early January, 2002, Rozelle informed his father that he wanted nothing further to do with Amedeo. Accordingly, Rozelle's father asked Amedeo to cease contact with Rozelle. Nonetheless, on January 5, 2002, Rozelle appeared at Amedeo's apartment after telling his mother he was going there to "appease" Amedeo before a pretrial intervention meeting scheduled for that week. Two friends of Amedeo, Charles Wilson and Anthony Costanzo, briefly were at the apartment and testified that Rozelle was behaving erratically and appeared "pretty wasted." As they left Amedeo's apartment around 7:50 p.m., Amedeo said to them that he "wanted to fuck [Rozelle]."

Sometime between 1:00 a.m and 7:00 a.m. the following morning, Rozelle died of a drug overdose in Amedeo's apartment.

At around 10:15 a.m. on January 6, Amedeo left his apartment to meet Wilson and Costanzo. Amedeo was in an agitated condition; he told them that he and Rozelle had "partied hard" the night before and that Rozelle might be dead. Amedeo also stated that he and Rozelle had had unprotected sex twice the previous night and that Rozelle may have been asleep the second time.

After spending time at a restaurant and Wilson's residence, Amedeo, Wilson, and Costanzo returned to Amedeo's apartment at around 12:35 p.m. that day. Amedeo and Costanzo cleaned up the apartment, hid drug paraphernalia and took out the trash. However, Wilson testified that he does not recall any cleaning taking place. Around 12:46, after attempting to wake Rozelle, Amedeo called 911. Paramedics and law enforcement arrived, and a preliminary investigation into Rozelle's death began.

That day, Detective Amy Sinnott arrived at Amedeo's apartment to investigate Rozelle's death. Amedeo told Sinnott that he and Rozelle had sex, after which Rozelle fell asleep in Amedeo's bedroom. Later, Amedeo had anal intercourse with Rozelle, during which Rozelle was breathing and may have said Amedeo's name, but was "kind of out of it." At some point after 12:30, Amedeo awoke to a wet spot in the bed. Concluding that Rozelle had urinated in the bed, Amedeo tried unsuccessfully to wake him. Amedeo stated that he then moved Rozelle to the floor and went to sleep in the other bedroom.

Amedeo consented in writing to a search of his apartment. In the master bedroom, Sinnott found a cut straw containing white powder and a jar containing marijuana. Licensed firearms were found locked in a case. Amedeo told Sinnott that only he and Wilson were in the apartment when the body was found; he did not reveal Costanzo's presence. Amedeo also did not reveal that Costanzo and Wilson had visited the previous night, stating only that a law school friend had stopped by in the afternoon. When Sinnott noted that there was no trash in the apartment, Amedeo denied removing it before calling 911.

At some point after the police investigation began, Amedeo called Costanzo and told him to say that he (Costanzo) was not in the apartment when Rozelle's body was found.¹ He also told Costanzo it was important to exaggerate the extent of Amedeo's romantic relationship with Rozelle, to make the relationship sound "that it was a little more than it really was."

On January 11, 2002, a federal search warrant was executed at Amedeo's apartment. Agents of the Bureau of Alcohol, Tobacco and Firearms seized six firearms from the case discovered in the earlier search, as well as drugs and drug paraphernalia. The search also yielded a videotape containing three segments. The first segment was taped by Rozelle on the weekend of October 28, 2001, and depicted a sexual encounter between Rozelle and a woman named Megan Stepanek.² The second segment was taped by Amedeo and showed him performing oral sex on Rozelle, who appeared to be unconscious. The third segment, also taped by Amedeo, showed him and Rozelle using drugs together on or about November 11, 2001. They smoked marijuana and cocaine residue from a bong and snorted powdered cocaine hydrochloride. It was the cocaine use depicted in this segment that became the basis for Amedeo's offense of conviction. The district court found that the second and third videotaped segments occurred on the same night.

Detective Sinnott searched Rozelle's mother's home, where Rozelle had been living. She found drug paraphernalia, three prescription bottles of Celexa, Xanax, marijuana and Ativan.

The toxicology report stated that Rozelle's death was a result of drug overdose, specifically, "polydrug toxicity" resulting from cocaine, methadone, Citralopam (Celexa) and Alprazolam (Xanax). The medical examiner who performed the autopsy testified that death resulted from the interaction of all four drugs, which combined to suppress Rozelle's central nervous system to the extent that his lungs filled with fluid and his heart and lungs stopped functioning.

A forensic toxicologist testified that there was no active cocaine in Rozelle's system; rather, there was cocaine metabolite, which reflected cocaine use at least twelve hours, and possibly up to several days, before his death. Neither the cocaine nor the Xanax, standing alone, was sufficient to cause death. The methadone and the Celexa individually were consumed at "toxic" levels. Nonetheless, neither expert testified unequivocally that either drug was independently fatal.³ The forensic toxicologist testified that a small quantity of Lorezepam (Ativan) was found in Rozelle's blood, which was "a little bit at the low end of the therapeutic range" rather than in the "toxic" range.

Amedeo's semen was found in Rozelle's underwear. Additional semen was found in Rozelle's anal canal, but its source could not be determined. There was no tearing or scarring of Rozelle's anus or rectum. The testimony at the sentencing hearing indicated that the lack of trauma could have resulted either from the absence of sexual assault (i.e., the sex was consensual) or from the relaxing effects of the drugs on Rozelle's body.

B. Procedural history

Amedeo was arrested on February 7, 2002. He was charged in a nine-count superceding indictment alleging one count of unlawful drug use while in possession of a firearm, 18 U.S.C. § 922(g)(3); one count of distribution of cocaine to a minor, 21 U.S.C. § 859; one count of cocaine distribution, 21 U.S.C. § 841; five counts of distribution of marijuana to a minor, 21 U.S.C. § 859; and one count of possession with intent to distribute marijuana, 21 U.S.C. § 841. Amedeo and the government entered a plea agreement in which Amedeo agreed to plead guilty to the count of distributing cocaine to a minor, 21 U.S.C. § 859(a), and the government agreed to drop the remaining charges.

The procedural maneuvering leading up to the sentencing was unusually complex. A Presentence Investigation Report (PSI) was issued, then repeatedly revised. The government recommended a reduction to Amedeo's sentence based on acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). It also requested enhancements on two grounds: (1) that Amedeo had abused his position of trust as Rozelle's attorney, pursuant to § 3B1.3; and (2) that Rozelle was a "vulnerable victim" because of his prior drug problems, pursuant to § 3A1.1. Lastly, the government recommended an upward departure pursuant to § 5K2.0 on the...