U.S. v. Guglielmi

• Decision Date: 11 April 1991
• Docket Number: No. 90-6809,90-6809
• Citation: 929 F.2d 1001
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis GUGLIELMI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1001

929 F.2d 1001

UNITED STATES of America, Plaintiff-Appellee, v. Louis GUGLIELMI, Defendant-Appellant.

No. 90-6809.

United States Court of Appeals Fourth Circuit.

Argued Dec. 4, 1990.

Decided April 11, 1991.

Alan M. Dershowitz, Cambridge, Mass., argued (Harold J. Bender, Bender & Matus Charlotte, N.C., Victoria B. Eiger, Nathan Z. Dershowitz, Dershowitz & Eiger, P.C., New York City, on brief), for defendant-appellant.

Thomas J. Ashcraft, U.S. Atty., Charlotte, N.C., for plaintiff-appellee.

Before ERVIN, Chief Judge, and MURNAGHAN and WILKINSON, Circuit Judges.

MURNAGHAN, Circuit Judge:

For a third time, we are called upon to review the imposition of an extremely substantial sentence flowing from a conviction on multiple counts of obscenity crimes predating the advent of the federal sentencing guidelines. ¹ Such review necessitates a most careful examination of the limitations the law places upon a federal appellate court's power to check the wide discretion accorded to federal district courts in matters of sentencing.

Appellant Louis Guglielmi was convicted, after a jury trial in the United States District Court for the Western District of North Carolina, of five counts of violating 18 U.S.C. Sec. 1465 by aiding and abetting the transportation in interstate commerce of obscene films, five parallel counts of violating 18 U.S.C. Sec. 1462 by using and causing to be used a common carrier for carriage of obscene films in interstate commerce, and one count of violating 18 U.S.C. Sec. 371 by conspiring to commit the transportation counts. He was sentenced on October 14, 1985 to a total of 25 years' imprisonment by the district judge. ²

Guglielmi appealed the original judgment, which was subsequently affirmed by this Court. United States v. Guglielmi, 819 F.2d 451 (4th Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 731, 98 L.Ed.2d 679 (1988) ("Guglielmi I "). There, however, we expressed for the first time our concerns regarding the sentence, troubled by the district court's order that the sentences run consecutively and by the fact that the FBI might, simply by ordering more films, have increased the sentence even further. Nevertheless, we held ourselves barred from conducting a proportionality review of the sentence by our earlier decision in United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986).

After petitions for rehearing en banc in this Court and for writ of certiorari in the Supreme Court were denied, Guglielmi filed a motion with the district court on May 9, 1988 to correct or reduce sentence under Federal Rule of Criminal Procedure 35(a) and (b). Without the benefit of a hearing and without awaiting the government's response, the district court, in a four-paragraph order, denied the motion. The order contained two very brief justifications for the denial: first, this court in Guglielmi I had already ruled that the sentence should not be disturbed on Eighth Amendment grounds and, second, contrary to the assertions of the movant, the court considered obscenity crimes to be very serious because their "victims," those who view the obscene films, might be compelled to commit sexual crimes.

On appeal from denial of the Rule 35 motion, we affirmed the Rule 35(a) portion of the district court's order as to the legality of the sentence, citing Guglielmi I. United States v. Guglielmi, No. 88-7656 Slip Op. at 4 (4th Cir., June 9, 1989) (unpublished opinion) [877 F.2d 60 (table) ] ("Guglielmi II "). But as to the Rule 35(b) portion, we found that the district court's order denying the motion indicated that the court had either deemed itself foreclosed from exercising its discretion or had allowed impermissible considerations to enter into the discretionary calculus.

As to the latter concern over the permissibility vel non of those factors a court may consider in passing sentence, we viewed the district court's allusion to the theory that sexually explicit or sexually violent material may induce criminal behavior as either beyond the pale of rationales known to anti-obscenity statutes or an abjuration of discretion. Our inability to ascertain, from the district court's brief order, which of the two perspectives was intended was of no moment, because either interpretation warranted remand. Guglielmi II, No. 88-7656 Slip Op. at 8-10. Critical to that remand decision was the proper discharge of our duty to ensure that the district court's disposition of the Rule 35 motion bespoke a clear and unambiguous exercise of discretion. See McCartney v. United States, 382 F.2d 116, 118 (9th Cir.1967) (remanding a Rule 35 disposition where sentencing court's denial of the motion leaves unclear whether court exercised discretion).

On reconsideration pursuant to Guglielmi II, the district court held a hearing on January 30, 1990, after granting three continuances at the request of counsel for Guglielmi. Both sides filed written arguments as well.

In addition to his brief, Guglielmi submitted documents attesting to his performance as a model prisoner, his good character, and his exemplary personal life. Renewed reference was made to the fact that Guglielmi's wife is wheelchair bound and that his son is in a Maryland institution for the criminally insane. Guglielmi also reemphasized that he was a first offender and was out of the pornography business entirely, thus posing no threat of recidivism.

The government argued against reduction of sentence on the grounds that the instant offenses involved extreme forms of obscenity, including particularly degrading and repulsive portrayals of bestiality; that the evidence indicated Guglielmi was engaged in a business of some significant scale involving films similar to the eight charged in the indictment; that there was evidence showing calculated knowledge by Guglielmi that he was engaged in illegal conduct; that particularly degrading, obscene materials such as those in the instant case have been linked to various harms to society and individuals (citing Attorney General's Commission on Pornography, U.S. Department of Justice, Final Report (1986)); that a lengthy sentence was a proper deterrent; and that Guglielmi had not demonstrated remorse or acceptance of responsibility and had failed to make any significant payment on his $35,000 fine despite apparent assets of more than $1.1 million.

After taking the arguments under advisement for a month and a half, the district court again denied Guglielmi's motion in a thirteen-page order filed on March 19, 1990. 731 F.Supp. 1273. Of those thirteen pages, two clarified the district court's interpretation of our ruling in Guglielmi I that the sentence "should not be disturbed," pointing out that its reliance on that language pertained only to the court's refusal to reconsider the asserted illegality of Guglielmi's sentence under Rule 35(a) and was not to be read as having relieved the court of exercising its discretion. Six pages were devoted to drawing a distinction between a) on the one hand, what the district court regarded as our reading of the district court's original order that trafficking in obscene materials foments violence and b) on the other, its own reading that such materials can bring about such a result. Reference was made to the Attorney General's Commission on Pornography Final Report 1986 linking the degradation depicted in certain obscene films to "the level of sexual violence ... in the population so exposed," juxtaposed with the graphic description of the films contained in Guglielmi I with the stated hope that we would "evaluate[ ] [the order] in the light of those facts." Three pages reviewed evidence adduced at trial that Guglielmi was a "large-scale" dealer in pornographic materials, and two pages took issue with counsel for Guglielmi's contention that he had been treated unfairly when his request for a continuance on January 30, 1990 was denied. In only two sentences did the district court appear to have weighed its own view of the gravity of the offenses against factors relating to the person charged, when it stated, "The Court notes that defense counsel ... contends that Defendant has a 'superb institutional record,' and the Court does not dispute that statement based on the information furnished. However, that does not detract from the Court's principal reason for incarceration, and that is deterrence."

Guglielmi timely filed a notice of appeal, urging for a third time that we conduct a proportionality review of the sentence pursuant to the Rule 35(a) portion of his motion and for a second time that we review the denial of the Rule 35(b) portion of his motion for an abuse of discretion.

I. Proportionality Review

We are precluded from conducting a proportionality review of the sentence under the Eighth Amendment for the simple reason that the issue has not properly been before us since Guglielmi I. See Guglielmi II, No. 88-7656 Slip Op. at n. 1. Counsel for Guglielmi appears to have unwarranted faith in the oft-repeated truism that water will wear away stone.

Undeterred, he has adjusted the argument to contend at oral argument that, without the availability of proportionality review, our scrutiny under an abuse of discretion standard should be more sharply focused.

II. Abuse of Discretion

We turn our attention to Guglielmi's abuse of discretion arguments. Guglielmi puts forward two arguments, mirroring the deficiencies we noted in Guglielmi II, as to why the district court abused its discretion in denying his Rule 35(b) motion. He first has contended that the district court based the sentence upon invalid, inappropriate, and illogical criteria--a sentence never contemplated or authorized by Congress. Second, Guglielmi has urged that the district court ignored our mandate in Guglielmi II that, on remand, the district court consider the Rule 35 motion by balancing the nature of the crime against such factors as...