U.S. v. Amico, Docket No. 03-1435-CR.

Decision Date26 July 2005
Docket NumberDocket No. 03-1435-CR.
Citation416 F.3d 163
PartiesUNITED STATES of America, Appellee, v. Robert A. AMICO, Patrick J. McNamara, Joseph Shramek, Capitol Mortgage, John L. Dinuzzo, John J. Siciliano, Heidi Lieberman, Robert J. Amico, Richard N. Amico, Debra Gilliatt, Defendants, Allan F. Peters, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Appeal from the United States District Court for the Western District of New York, Charles J. Siragusa, J Bruce R. Bryan, Syracuse, NY, for Defendant-Appellant.

Richard A. Resnick, Assistant United States Attorney, Western District of New York (Michael A. Battle, United States Attorney, on the brief), Rochester, NY, for Appellee.

Before: WALKER, Chief Judge, LEVAL, KATZMANN, Circuit Judges.

LEVAL, Circuit Judge.

Defendant-appellant Allan F. Peters appeals from a judgment of the United States District Court for the Western District of New York (Charles J. Siragusa, J.) convicting him, pursuant to his guilty plea, of mail fraud, under 18 U.S.C. § 1341; mortgage fraud, under 18 U.S.C. § 1014; and filing a false tax return, under 26 U.S.C. § 7206(1). Peters was sentenced principally to concurrent terms of imprisonment of forty-eight months, forty-eight months, and thirty-six months respectively. Peters contends on appeal that (1) the government breached the plea agreement by advocating for two-level sentencing enhancements for use of "sophisticated means" under U.S.S.G. § 2F1.1(b)(6)(C) (2000), and for "aggravating role" under U.S.S.G. § 3B1.1(c) (2000); (2) the sentencing court erred by imposing those enhancements; and (3) the court erred in following the United States Sentencing Guidelines, which unconstitutionally deprived the defendant of his right to a jury trial.

BACKGROUND

Peters participated in a complex scheme to defraud federally insured banks and private mortgage lenders by using false information to obtain mortgages at inflated prices. In his role as a mortgage broker, Peters knowingly caused loan applications containing false information to be submitted to lenders. He also knowingly failed to report income on his tax returns and made material misrepresentations in his children's applications for college grants. On November 29, 2001, Peters pleaded guilty pursuant to a plea agreement.

In the plea agreement, Peters and the government agreed to the applicability of certain upward Guideline adjustments and, using the 2000 Sentencing Guidelines, to an adjusted offense level of 21. The government further agreed not to oppose a three-level downward adjustment for acceptance of responsibility, which, if granted, would reduce Peters's offense level to 18. The court accepted the plea.

The Presentence Report recommended two upward Guideline adjustments not discussed in the plea agreement: a two-level increase for sophisticated means under U.S.S.G. § 2F1.1(b)(6)(C), and a two-level increase for aggravating role under U.S.S.G. § 3B1.1(c). The court adopted these adjustments and granted a three-level downward adjustment for acceptance of responsibility, ultimately finding an offense level of 22, and sentencing within that range.

DISCUSSION
1. Alleged Breaches of the Plea Agreement

Peters first contends that the government breached its agreement as to the adjusted offense level when it filed a statement that it "adopts the findings of the revised Presentence Investigation Report." After Peters complained that the government's endorsement of these enhancements violated the agreement, the government filed an amended statement expressly declining to advocate for sophisticated means and aggravating role enhancements, and repeated that position several times thereafter. While we do not mean to imply that a retraction of an argument advanced by the government in violation of its plea agreement would always cure its breach, we conclude upon careful examination of all the circumstances, especially the mild, brief, and unassertive form of the statement and its rapid retraction, that the temporary breach was adequately cured.

Peters also contends the government breached the agreement by submitting a lengthy response to his objections to the Presentence Report. We disagree. In the plea agreement, the government reserved the right to "respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government." Furthermore, while the government had agreed to the adjusted Guideline range, nothing in the plea agreement barred the government from forcefully advocating for a sentence at the top of the range. The government was thus free to argue in a manner casting pejorative light on the defendant and his criminal activity. The factual portion of the government's filing falls squarely within its reservation of rights. The government disputed argumentative statements made by the defense (e.g., "mortgage brokers were not necessarily needed for the continuation of the fraud") with characterizations of its own (e.g., "the mortgage brokers were crucial to the success of the Amicos' scheme"). Peters opened the door to this response when he attempted to characterize the criminal scheme in a manner favorable to himself, minimized the importance to the criminal scheme of the mortgage brokers, and claimed not to have known supporting documentation accompanying the loan applications was false.

In addition, Peters challenges the propriety under the plea agreement of the government's discussion of the law governing sophisticated means and aggravating role enhancements. Peters's memo objecting to the enhancements proposed by the Presentence Report, not surprisingly, was slanted in favor of his position. It also omitted significant adverse authority. The government's memo in response filled in gaps left by Peters's memorandum of law, noted significant precedent, and explained the Guidelines provisions relating to sophisticated means and aggravating role. Although the precedent the government cited consisted primarily of cases supporting the enhancements, it also cited to a case in which we held that an aggravating role enhancement was not appropriate because the defendant did not control other participants in the criminal scheme. See United States v. Burgos, 324 F.3d 88, 92-93 (2d Cir.2003). The government prefaced its discussion, furthermore, by stating that "[t]he government is not advocating for such enhancements, as they were not contemplated in the plea agreement." Four more times over the course of five pages the government repeated that it was not advocating for the enhancements. We find that this discussion constituted an appropriate response to Peters's provocative arguments and that it fell within the bounds of the plea agreement.

We comment further on one aspect of the government's response to Peters's opposition to the two-level enhancement under § 3B1.1 for aggravating role, as recommended by the Presentence Report. The government's memo explained the range of adjustments provided by § 3B1.1 for aggravating role, including that, in circumstances where the criminal activity involved five or more participants "or was otherwise extensive," the Guideline calls for an increase of three or four levels, rather than two. The memo did not characterize Peters's conduct as warranting a three— or four-level adjustment, and did not advocate applying it to him. Indeed, immediately following the reference, it cautioned that the government was not advocating for any level of enhancement. Although Peters has not raised this contention, it is arguable that the very mention of the Guidelines provision calling for a more extreme adjustment than the two-level enhancement suggested by the Presentence Report constituted a breach of the plea agreement.

We reject the argument. In view of the defendant's inaccurate description of the law relating to aggravating role, the government was entitled to explain the law concerning this adjustment without violating its agreement. The sentencing court, moreover, apparently did not read this passage as advocating a three— or four-level enhancement, and never even considered imposing an aggravating role enhancement exceeding the two-level adjustment recommended in the Presentence Report.1 We conclude that the government's correct description of the terms of the Guideline adjustment, undertaken as a proper response to exaggerated argumentation by the defendant, did not violate the agreement, even though the description referred to a more extreme provision of the enhancement than the one suggested in the Presentence Report.2 Cf. United States v. Riera, 298 F.3d 128, 135-36 (2d Cir.2002).

Even if we were to conclude that this discussion should be considered a violation of the agreement, it was at worst a technical violation which had no consequence and should not require vacating the sentence. We recognize that this court recently explained in United States v. Vaval, 404 F.3d 144, 154 (2d Cir.2005), that "prejudice in the form of an increased sentence" need not be shown to obtain a remedy where the government has violated its plea agreement. We noted that "in order to preserve the integrity of plea bargaining procedures and public confidence in the criminal justice system, a defendant is generally entitled to the enforcement of a plea agreement without showing a tangible harm resulting from a breach." Id. at 155. At the same time, however, the Vaval opinion recognized a limited exception where the violation "does not cause the defendant to suffer any meaningful detriment" because the defendant's "reasonable expectations [were] fulfilled." Id.; see also Paradiso v. United States, 689 F.2d 28, 31 (2d Cir.1982) (per curiam). In this case, if we were to conclude that the mention of the three— or four-level enhancement technically violated the agreement, the violation would nonetheless fall within this...

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