U.S. v. Quintieri

• Decision Date: 09 October 2002
• Docket Number: Docket No. 01-1013.
• Citation: 306 F.3d 1217
• Parties: UNITED STATES, Appellee, v. Ernesto QUINTIERI, Defendant, Carlo Donato, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

306 F.3d 1217

UNITED STATES, Appellee, v. Ernesto QUINTIERI, Defendant, Carlo Donato, Defendant-Appellant.

Docket No. 01-1013.

United States Court of Appeals, Second Circuit.

Submitted: February 11, 2002.

Decided: October 9, 2002.

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Michael Cornacchia, Assistant United States Attorney (Alan Vinegrad, United States Attorney for the Eastern District of New York, Emily Berger, of counsel), Brooklyn, NY, for Appellee.

Carlo Donato, pro se, Lompoc, CA; Ruth M. Liebesman, New York, NY, for Defendant-Appellant.

Before: WALKER, Chief Judge, SACK, and B.D. PARKER, Circuit Judges.

SACK, Circuit Judge.

The defendant-appellant Carlo Donato was resentenced by the United States District Court for the Eastern District of New York (Jacob Mishler, Judge) upon remand after a decision of this court vacating his first sentence. Donato appeals on a variety of grounds. In order to decide this appeal, we must address knotty questions that emerge when an appeal results in a remand for resentencing. The difficulty arises largely from the apparent tension between the view, adverted to in United States v. Atehortva, 69 F.3d 679, 685 (2d Cir.1995), cert. denied sub nom. Correa v. United States, 517 U.S. 1249, 116 S.Ct. 2510, 135 L.Ed.2d 199 (1996), that resentencing should proceed de novo unless the remand "specifically limit[s] the scope of resentencing," and our conclusion in United States v. Stanley, 54 F.3d 103, 108 (2d Cir.), cert. denied, 516 U.S. 891, 116 S.Ct. 238, 133 L.Ed.2d 166 (1995), that resentencing is limited, not de novo, when the remanding court identifies a sentencing error and remands for correction of that error but does not explicitly limit the scope of the remand. If the former view prevails in the case before us, the district court was required to resentence Donato de novo and we must hear on appeal every issue raised at resentencing so long as we have not previously decided it. If the latter applies, then the remand was limited and, under the doctrine of the law of the case, the district court should not have considered those issues, if any, that Donato previously waived or that we previously decided.

Donato appeals from the sentence imposed on him by the district court following our remand of the case for resentencing because it appeared that, at Donato's first sentencing, "double counting" may have improperly increased his offense level on one count. On remand, the district court concluded that it had indeed improperly increased Donato's offense level and, accordingly, reduced his sentence. The defendant argues on appeal: (1) through counsel, (a) that the district court was required to hold a hearing to determine whether he was competent to be resentenced, (b) that the district court was required to order a new presentence investigation report ("PSR") before resentencing him, (c) that the district court improperly failed to consider the required factors before ordering restitution and a fine, and (d) that the amount of the fine was in error; and (2) pro se, (a) that the district court improperly failed to consider his motion for a downward departure, and (b) that his sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Eighth Amendment to the Constitution, and § 2K2.4 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines").

As the government concedes, the district court erred when it imposed a fine above the amount prescribed by the Guidelines without explaining its reasons for a departure. We conclude that all of Donato's other arguments are either barred by the law of the case or without merit.

BACKGROUND

In separate incidents in 1993 and 1994, Donato carjacked three Mercedes Benz and three BMW vehicles, each time threatening his victim with a gun. For these robberies, a jury convicted Donato in 1996 of one count of conspiracy to commit carjacking in violation of 18 U.S.C. § 371, six counts of carjacking in violation of 18 U.S.C. § 2119, and six counts of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Based on a combined total offense level of thirty-two and a criminal history category of II, the district court sentenced Donato to 168 months' (fourteen years') imprisonment on the one count of conspiracy to commit carjacking and the six substantive carjacking counts.¹ Donato was also sentenced to 105 years on the firearm counts, five years for the first count and twenty years for each subsequent count pursuant to 18 U.S.C. § 924(c)(1), as then in effect, to be served consecutively to each other and to the carjacking sentence. The defendant's aggregate prison term was therefore 119 years. He was also ordered to serve three years of supervised release² and to pay a $175,000 fine and $295,807.25 in restitution.

On April 23, 1997, we affirmed Donato's convictions in an unpublished order. United States v. Donato, 112 F.3d 506 (table), No. 96-1547, 1997 WL 196593, 1997 U.S.App. LEXIS 8094 (2d Cir.1997) ("Donato I"). In March 1998, Donato brought a pro se motion to set aside his conviction and sentence pursuant to 28 U.S.C. § 2255. The district court denied this motion but granted a certificate of appealability. We appointed counsel, received briefing, and heard oral argument, most of it related to assertions of ineffective assistance of counsel on various grounds. See Donato v. United States, 208 F.3d 202 (table), No. 98-2991, 2000 WL 268593, 2000 U.S.App. LEXIS 3788 (2d Cir.) ("Donato II"), cert. denied, 531 U.S. 899, 121 S.Ct. 233, 148 L.Ed.2d 167 (2000). In an unpublished order dated March 7, 2000, we decided that all but one of Donato's arguments were without merit. Id. With respect to that one argument, we concluded that "there may have been improper double counting if the district court [had] increased the offense level for the conspiracy count" under U.S.S.G. § 2B3.1(b)(2)(C) for possession of a firearm and then also sentenced the defendant to a consecutive sentence under § 924(c) for the same firearm possession. Id. at *3, 2000 U.S.App. LEXIS 3788, at *7-*9. We therefore "remand[ed] to the district court for resentencing in light of [that] order, without prejudice to the government submitting an argument to the district court explaining why this was not double-counting." Id. at *3, 2000 U.S.App. LEXIS 3788, at *9.

On remand, after consultation with the probation department, the government conceded that Donato's combined total offense level on the conspiracy count had been improperly enhanced as a result of "double counting." The government told the court that Donato's combined total offense level on the conspiracy count and the carjacking counts should therefore have been twenty-nine, not thirty-two. Donato's combined total offense level for these counts would then have to have been recalculated pursuant to the grouping provisions contained in U.S.S.G. §§ 3D1.1(a) and 3D1.4, which provide for the calculation of a combined offense level by taking the offense level applicable to the count with the highest offense level and then adding levels to account for the fact that multiple counts are involved. At the original sentencing, according to the PSR, the conspiracy count had the highest offense level. But after removing the improper enhancement for possession of a firearm, that was no longer the case. One of the substantive counts for carjacking now had the highest offense level — twenty-four. This level was calculated by enhancing the base offense level of twenty, U.S.S.G. § 2B3.1(a), by two levels because the robbery involved carjacking, § 2B3.1(b)(5), and then by two more levels because the loss amount was more than $50,000, § 2B3.1(b)(7)(C). The government then arrived at a combined total offense level of twenty-nine for all seven convictions by adding five additional levels to account for Donato's additional six crimes with offense levels within four levels of the carjacking count with the highest offense level. See U.S.S.G. § 3D1.4(a).³ Because Donato's criminal history category was II, the applicable Guideline range for the conspiracy and carjacking counts was now 97 to 121 months. As before, this sentence would run consecutively to the 105-year prison term on the firearm counts.⁴

At the resentencing hearing on December 1, 2000, defense counsel "concurred" in the government's sentencing analysis but asked the court to downwardly depart for post-conviction rehabilitation. Defense counsel also asked the court to consider Donato's pro se sentencing memorandum that argued that his sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied the application for a downward departure and rejected Donato's Apprendi arguments.

When asked if he wished to make a statement, Donato said that he felt "dizzy" and was not well enough to be at the hearing because his psychiatric medications had been "mix[ed] up" the previous day. Hr'g Tr. of Dec. 1, 2000, at 4. Defense counsel stated that based on three conversations with Donato the previous day and a review of his medical records, she thought that while he did not "feel[] well" he was nonetheless "lucid and able to continue with the sentencing." Id. at 5. Defense counsel also reported that Donato "[was] well oriented as to time and place and fully underst[ood] the purpose of [the] procedure." Id. No one present at the resentencing hearing requested a competency hearing.

The district court then resentenced Donato to the same term as it had the first time, except that to correct for the "double counting," the court reduced Donato's sentence on the conspiracy and carjacking counts to 120 months (ten years) — one month shy of the top of the sentencing range. He therefore received an aggregate prison sentence of 115 years — ten years for conspiracy and carjacking plus 105 years for the...