U.S. v. Raimondi, 97-3995
| Decision Date | 04 November 1998 |
| Docket Number | No. 97-3995,97-3995 |
| Citation | 159 F.3d 1095 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles M. RAIMONDI, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy M. O'Shea (argued), Peggy A. Lautenschlager, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
Ralph A. Kalal (argued), Kalal & Associates, Madison, WI, for Defendant-Appellant.
Before FLAUM, RIPPLE and KANNE, Circuit Judges.
Charles Raimondi, Jr. lived and worked with his father, Charles Raimondi, Sr., who owned the Last Resort on Fresh Lake in western Wisconsin. The resort included a few cabins and a two-story building; on the first floor of that building was the Last Resort Tavern and on the second floor were the living quarters of the father and son. Both men worked at the tavern. Starting around December 1994, Mr. Raimondi, Jr. sold cocaine at the tavern along with the usual tavern fare. His source fronted the cocaine to him; he would obtain the cocaine on credit and would pay back the purchase price to his source after he had sold that batch. However, Mr. Raimondi, Jr. enjoyed using cocaine himself and giving it to others free of charge. In fact, after one cocaine party he hosted, a friend attending the party reported that a pile of cocaine 4-5 inches tall and 5-7 inches in diameter was left on a table for all to use. This habit of treating his many friends cut into Mr. Raimondi, Jr.'s profit margin. His debts to his Chicago suppliers began mounting. When his father learned of his son's cocaine dealing and increasing debts and realized that he could not pay off his son's debts himself, Raimondi, Sr. went into the drug business with his son in an attempt to increase the sales volume and to generate sufficient income to pay off the debts.
Mr. Raimondi, Jr. purchased (with cash and cocaine) a .40 caliber Beretta semi-automatic handgun in February 1995. He carried it in the small of his back and flashed it around to his customers. Shortly after obtaining the handgun, he threatened two customers with it--first Donna Klenk, who owed him $400 for cocaine, and then Bruce Smetak, who came to the Last Resort several times a week for cocaine but was slow to pay for it. Once, when Smetak complained about the poor quality of an eighth ounce of cocaine, Mr. Raimondi pulled out his weapon and told him to pay up. Another person who obtained free cocaine from Mr. Raimondi, Jr. was Leslie Barillas. She saw him threaten a man with the Beretta and knew that he had shown the gun to her five year-old son when Mr. Raimondi was visiting them. Barillas also returned home once to find Mr. Raimondi, Jr. smoking cocaine with her son's sixteen year-old babysitter.
By early April 1995, Raimondi, Sr. learned about the Beretta and took the gun away from his son. The father and son quarreled, and Mr. Raimondi, Jr. moved out of the Last Resort and into Donna Klenk's cabin. Shortly thereafter, Mr. Raimondi, Jr. was arrested at Klenk's cabin on a state probation warrant.
On January 29, 1997, a federal grand jury charged Mr. Raimondi, Jr. with being a felon in possession of a firearm. 1 Later, in a superseding indictment, Mr. Raimondi was charged with conspiracy to distribute cocaine under 21 U.S.C. §§ 841 & 846, possessing cocaine with intent to distribute under 21 U.S.C. § 841 and being a felon in possession The presentence report ("PSR") stated that the Raimondis, Jr. and Sr. together, sold or gave away 737 grams of cocaine. It determined that Mr. Raimondi, Jr.'s base offense level therefore was 26. The PSR recommended the addition of two levels under § 2D1.1(b)(1) of the United States Sentencing Guidelines ("U.S.S.G.") to reflect that Mr. Raimondi possessed the Beretta in connection with the cocaine conspiracy. 3 It also recommended a downward adjustment of three levels for acceptance of responsibility under § 3E1.1. The resulting total offense level was 25. Based on a criminal history category of VI, the PSR calculated the guideline imprisonment range for Mr. Raimondi at 110-137 months.
of a firearm under 18 U.S.C. § 922(g)(1). 2 On September 3, 1997, he entered into a plea agreement and pleaded guilty to Count 1, the conspiracy charge. The government, in turn, agreed to dismiss the remaining charges
At the November 12, 1997 sentencing hearing, the district court asked why Mr. Raimondi was not charged under 18 U.S.C. § 924(c). 4 The assistant United States attorney replied that his office believed that the charged drug crimes provided sufficient punishment. The district court disagreed and rejected the plea agreement. See U.S.S.G. § 6B1.2, p.s. 5 It granted the defendant a one-day continuance to consider the ruling. 6
The next day, despite the rejected agreement, Mr. Raimondi confirmed his guilty plea. The court then stated it was considering an upward departure under U.S.S.G. § 5K2.0, p.s., 7 based on Mr. Raimondi's use At the reconvened sentencing hearing held November 21, the government argued against the court's suggested upward departure. It maintained that "possession" of a firearm under § 2D1.1(b)(1) ought to be read broadly and that, given the typical behavior of those who traffic in drugs, Mr. Raimondi's use of his weapon could not be characterized as exceptional or unusual so as to remove it from the "heartland" of cases to which § 2D1.1(b)(1) applies. Mr. Raimondi also argued for no upward departure.
of a firearm in relation to his drug dealing. The court noted that Mr. Raimondi not only possessed but also used and brandished the weapon in furtherance of the conspiracy. Those factors may warrant departure upward, it stated. Sentencing was then rescheduled for a week later.
The district court rejected the positions of the government and the defendant. In its view, the threatening use of the gun, while Mr. Raimondi was using cocaine, and his reckless behavior that could have resulted in the discharge of the weapon amounted to aggravated use of the firearm which "takes this out of the heartland because it was reasonable to foresee grave bodily injury based upon the threats which this defendant presented to those persons in his presence." R.119 at 36. The court further stated that "[i]t is one of those 2K2.1 determinations [in] which indeed there has been demonstrated a substantial risk of bodily injury to multiple [individuals]." 8 Id. Explicitly disavowing that it was departing upward because of the government's failure to seek a conviction under § 924(e), the court concluded:
This Court departed because of the fact that the guideline did not reflect the seriousness of that significant criminal activity in which this defendant was involved and has determined that there are those facts and circumstances taking this out of the heartland and that for a 924(c) there is that five years which is a reasonable guideline for it.
Id. at 37-38. The district court then departed upward three levels, from 25 to 28, and sentenced Mr. Raimondi, whose criminal history category was VI, at the high end of the sentencing range to 175 months of imprisonment.
Mr. Raimondi submits that his handling of the firearm was typical conduct in drug transactions and was not "out of the heartland" of drug activities. He relies on United States v. Otis, 107 F.3d 487 (7th Cir.1997). In that case, we reversed an upward departure based on the defendant's use of a gun in drug dealing. According to Mr. Raimondi, this court said in Otis that guns are tools of the trade in the drug business and that Otis' conduct in that case therefore was covered by § 2D1.1. Indeed, notes Mr. Raimondi, in Otis shootings occurred, and yet no upward departure was justified. In this case, he reminds us, there were no shootings. In Mr. Raimondi's view, the district court's distinction between possessing and brandishing a weapon is artificial and should not be allowed as the basis for an upward departure. He also asserts that the real motivation for adding three levels to his sentence was to punish him for violating 18 U.S.C. § 924(c), an offense for which, at the election of the government, he was not indicted.
Mr. Raimondi further asserts that the district court failed to give him adequate notice of the grounds for the intended departure. Specifically, the district court never indicated when it gave notice that it would rely on U.S.S.G. § 2K2.1. These provisions were mentioned only when the court pronounced sentence. This omission, he contends, does not comport with the obligation of the district court to notify him of the specific ground upon which the court intends to depart upward. See Burns v. United States, 501 U.S. 129, 131, 138-39, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). Mr. Raimondi also claims the district court erred by basing the departure on § 2K2.1, which deals with firearm offenses, not drug offenses in which a firearm is used. Nor, Mr. Raimondi contends, does his conduct fit application note 16 of § 2K2.1, which approves an upward departure when the offense either involved more than 50 firearms or involved military-type assault weapons or large quantities of armor-piercing ammunition, or ...
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