U.S. v. DeRiggi
| Decision Date | 26 January 1995 |
| Docket Number | D,No. 541,541 |
| Citation | 45 F.3d 713 |
| Parties | UNITED STATES of America, Appellant, v. Nicola DeRIGGI; Anthony Barone; Andrew Komonski; Benny Chao; Jai Gurdyal; Joseph Antonucci; Juan Ayala; Salvatore Cariola; Peter DiPrima; Brian Ficeto; William Kruczowy; Lawrence Lazewski; Richard Litwinkowich; Edwin Mercado; St. Elmo Moaze; Henry Muller; Gilbert O'Connor; Joseph Ridley; George Rodriguez; Ralph Sands; John Sarcone; Rafael Sargeant and Anthony Tetro, Defendants, Alfred Abbadessa; Michael Antonucci; Ismael Hernandez and Raymond Quinones, Defendants-Appellees. ocket 94-1219. |
| Court | U.S. Court of Appeals — Second Circuit |
Gordon Mehler, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary Carter, U.S. Atty. E.D.N.Y., David C. James, Asst. U.S. Atty., of counsel) for plaintiff-appellant.
John Burke, Brooklyn, NY, for defendant-appellee Raymond Quinones.
Daniel Nobel, New York City, for defendant-appellee Ismael Hernandez.
Joseph Corrozzo, Rubinstein and Corrozzo, Kew Gardens, NY, for defendant-appellee Michael Antonucci.
Ronald Rubinstein, Kew Gardens, NY, for defendant-appellee Alfred Abbadessa.
Before PRATT, ALTIMARI, and JACOBS, Circuit Judges.
The United States appeals, pursuant to 18 U.S.C. Sec. 3742(b), from judgments entered on March 29, April 22, and May 2, 1994, sentencing the defendants-appellees to terms of imprisonment that are below the minimum terms prescribed by the applicable provisions of the United States Sentencing Guidelines, and that are not the subject of findings justifying downward departures, 848 F.Supp. 369. The United States also appeals from the denial of motions made pursuant to Fed.R.Crim.P. 35(c) to correct the disputed sentences.
The defendants-appellees pleaded guilty to conspiracy to commit extortion by accepting illegal payoffs in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Alfred Abbadessa and Michael Antonucci were sentenced principally to twelve months' imprisonment. Raymond Quinones and Ismael Hernandez were, respectively, principally sentenced to eleven and nine month terms. The government appeals the sentences on the ground that longer prison terms were required by the Sentencing Guidelines. For the reasons set forth below, we vacate and remand for resentencing.
Abbadessa, Antonucci, Hernandez and Quinones ("appellees") were New York City Taxi and Limousine Commission ("TLC") inspectors. Appellees, whose jobs were to inspect New York City medallion cabs, accepted bribes along with 26 of their colleagues, to overlook defects in the cabs they inspected and to certify inspections that never took place. Some inspectors also caused cabs to fail inspections because their owners had refused to make payoffs.
The widespread scheme was centered at the TLC's Safety and Emissions Division in Woodside, Queens. All taxicabs must undergo routine inspections three times annually at the Woodside facility. In addition, random inspections are conducted in the field. Cab conditions that are not in compliance with TLC standards trigger the issuance of a "notice of violation." Failure of a routine inspection, or failure to cure a notice of violation can result in the suspension of the taxi's medallion. By rigging the inspection system, the appellees ensured that taxicabs whose owners or operators paid bribes would pass inspection. The scheme also encompassed the field tests, guaranteeing that cabs with notices of violation received notices stating that the defects had been corrected.
The appellees were line inspectors, responsible for actually conducting inspections. The environment in which they worked was rife with corruption. According to the district court, half of the forty-four line inspectors were defendants in the district court. Three of seven senior inspectors were charged, and all three supervising inspectors were also defendants. Several defendants testified that employees who resisted the scheme were threatened and intimidated. One inspector reported the corruption to his supervisor only to discover that the boss was a participant.
All told, thirty defendants pleaded guilty to conspiracy to commit extortion by accepting illegal payoffs in violation of 18 U.S.C. Sec. 1951(a). The presentence reports ("PSRs"), using the then-governing Guidelines, recommended a range of 24 to 30 months for the appellees, calculated as follows: (1) a base offense level of 10, see U.S.S.G. Secs. 2E1.5 and 2C1.1(a); (2) a two-level increase because there were multiple bribes, see U.S.S.G. Sec. 2C1.1(b)(1); (3) another eight-level increase to reflect the aggregate value of the bribes, see U.S.S.G. Secs. 2C1.1(b)(2)(A), 2F1.1(b)(1)(I); (4) a three-level decrease for acceptance of responsibility, see U.S.S.G. Secs. 3E1.1(a), (b)(1); and (5) a criminal history category of I. The total offense level of seventeen resulted in a Guideline range of 24 to 30 months for all four appellees. Although the government had not moved for downward departures, the district court imposed sentences of less than twenty-four months on each appellee.
In a memorandum which was revised and reissued one month after the defendants were sentenced, the district court analyzed the relevant sentencing issues. In the The government appeals. It challenges the court's interpretation of 18 U.S.C. Sec. 3553 and asks that we reject the notion that the Guidelines do not control in every instance. The government further asks that we vacate the sentences because the district court made inadequate findings to support individual downward departures.
court's view, the Guidelines are one of several factors to be considered in imposing sentence, and are not necessarily controlling. Relying on an analysis it set forth in United States v. Concepcion, 795 F.Supp. 1262 (E.D.N.Y.1992), the court determined that, in the case before it, the Sentencing Guidelines did not govern because the 24 to 30 month range was "greater than necessary" to achieve general punishment purposes as that phrase is used in 18 U.S.C. Sec. 3553(a). The court therefore imposed lesser sentences, noting without findings or particulars that the "sentences imposed would be appropriate" even if the Guidelines were, in fact, binding.
Congress transformed the way in which federal sentences were imposed when it passed the Sentencing Reform Act in 1984. See Burns v. United States 501 U.S. 129, 132, 111 S.Ct. 2182, 2184, 115 L.Ed.2d 123 (1991); see also 18 U.S.C. Secs. 3551-3559, 3561-3566, 3571-3574, 3581-3586 and 28 U.S.C. Secs. 991-998. The Sentencing Reform Act instructs courts that defendants found guilty of most federal offenses "shall be sentenced in accordance with the provisions of this chapter so as to achieve the [sentencing] purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all of the circumstances of the case." 18 U.S.C. Sec. 3551(a).
Captioned "Imposition of a sentence," section 3553 has two subsections. Subsection (a) is titled "Factors to be considered in imposing a sentence." Courts are directed to consider several factors in imposing sentences which are "sufficient but not greater than necessary...." (internal punctuation omitted). 18 U.S.C. Sec. 3553(a). Of the seven factors identified, the district judge in the case before us correctly pointed out that the Guidelines are directly implicated by only the fourth and fifth. See Concepcion, 795 F.Supp. at 1277. Largely as a result of its reading of section 3553(a), the district court concluded that the Guidelines are not binding in every case.
Notwithstanding that the Guidelines appear to be but one of several factors to be considered by a sentencing court, the statute goes on to say that the court "shall impose a sentence of the kind, and within the [Guidelines] range ... unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission...." 18 U.S.C. Sec. 3553(b). Thus, although subsection (a) fails to assign controlling weight to the Guidelines, subsection (b) does so.
The district court believed that construing the Guidelines as the controlling factor would require a sentencing court to ignore sections 3551 and 3553(a). We disagree. Section 3551 directs district courts to bear in mind the relevant sentencing purposes set forth in section 3553(a)(2)(A)-(D). It thus bids courts to consider, before they impose sentence, to what end they do so. That is, Congress expects courts preparing to sentence to reflect, as they always have, on several traditional principles of sentencing. Section 3551 is a general statement of purpose which is entirely consistent with Congress's intent that the Guidelines bind the district courts.
In sum, section 3553 sets out, in the first instance, general factors to be considered by a court preparing to sentence. See 18 U.S.C. Sec. 3553(a). These factors are listed in no particular order because they do not represent a fixed method for sentencing. Rather, they are a statement of the principles traditionally considered by courts before the Sentencing Reform Act became law. We hold that section 3553 requires a court to sentence within the applicable Guidelines range unless a departure, as that term has come to be understood, is appropriate. See 18 U.S.C. Sec. 3553(b). And, since departures also serve The language of the statute, its legislative history and interpretive case law support our construction. First, the language of subsection (b) is mandatory rather than precatory. See United States v. Davern, 970 F.2d 1490, 1492 (6th Cir.1992) (en banc ), cert. denied, --- U.S. ----, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). We reject the notion that our interpretation renders immaterial the mandate of subsection (a), directing courts to impose a...
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