U.S. v. Riera

• Decision Date: 01 August 2002
• Docket Number: Docket No. 00-1815.
• Citation: U.S. v. Riera, 298 F.3d 128 (2nd Cir. 2002)
• Parties: UNITED STATES of America, Appellee, v. Alberto J. RIERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

298 F.3d 128

UNITED STATES of America, Appellee, v. Alberto J. RIERA, Defendant-Appellant.

Docket No. 00-1815.

United States Court of Appeals, Second Circuit.

Argued: October 22, 2001.

Decided: August 01, 2002.

Ping C. Moy, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York; Jamie L. Kogan, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Colleen P. Cassidy, The Legal Aid Society, Federal Defender Division Appeals Bureau, New York, NY, for Appellant.

Before CARDAMONE, WINTER, and SACK, Circuit Judges.

SACK, Circuit Judge.

The defendant-appellant Alberto J. Riera appeals from the December 19, 2000 judgment of the United States District Court for the Southern District of New York (Richard Owen, Judge) following his guilty plea to eleven counts of wire fraud in violation of 18 U.S.C. § 1343 and sentencing him principally to concurrent terms of sixty months' imprisonment on each count. Riera contends (1) that he must be resentenced because the district court's four-level upward departure pursuant to § 5K2.0 of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines")¹ was based on impermissible grounds; and (2) that he is entitled to have resentencing conducted before a different district court judge because the government breached the plea agreement by advocating before the sentencing judge for an upward departure. In response to Riera's first argument, the government concedes that "the record as currently constituted is insufficient to support the vertical departure imposed," but argues that such a departure might be permissible in this case if the departure were based on appropriate findings by the district court. Gov't Br. at 31, 33. We need not decide whether an upward departure can be justified on the facts of this case because we hold that the district court's reliance upon impermissible factors necessitates resentencing. Riera's second argument, that the government breached the plea agreement, presents a closer question. Although we do not condone the government's behavior in this regard, we conclude that it did not breach the plea agreement. We therefore remand the case to the district court and decline to disqualify Judge Owen from presiding on remand.

BACKGROUND

On February 9, 2000, Riera was indicted on eleven counts of wire fraud in violation of 18 U.S.C. § 1343. Pursuant to a written agreement, Riera pleaded guilty on June 19, 2000 to all eleven counts, admitting that he embezzled approximately $541,000 from his employer Mega Communications, Inc. As part of that agreement, he admitted committing relevant conduct not charged in the indictment, namely, the theft and embezzlement of $365,000 from his former employer, Spanish Broadcasting System. In exchange, the government agreed not to prosecute him further for that conduct. The parties stipulated that Riera's adjusted offense level was sixteen and his criminal history category II, yielding a sentencing range of twenty-four to thirty months. The adjusted offense level was arrived at by employing a base offense level of six, adding eleven levels to account for the $906,000 loss amount and two levels because the offense involved more than minimal planning, and then subtracting three levels in light of Riera's acceptance of responsibility. With one exception not relevant to this appeal, the parties also promised not to suggest to the district court or Probation Department a departure in either direction from this Guideline range. The plea agreement stated, however, that if the court contemplated an adjustment, then "the parties reserve the right to answer any inquiries and to make all appropriate arguments concerning the same." Plea Agreement at 4. The parties further agreed that in the event that Riera committed another crime after signing the plea agreement, the government could seek denial of the three-level adjustment for acceptance of responsibility.

After pleading guilty and while free on bail, Riera was arrested for submitting false timesheets to his new employer. In exchange for his allocution to this additional fraud offense, the government orally agreed in open court to recommend that the court deny him only two of the three acceptance of responsibility points. The other terms of the written agreement remained binding.

On October 27, 2000, the court accepted this new plea agreement and gave notice to the parties that it was considering an upward departure based on Riera's "conduct and state of mind," Hr'g Tr., Oct. 27, 2000, at 21. As discussed further in Part II of the "Discussion" section below, the parties dispute whether the court solicited the government's opinion on the propriety of an upward departure. In any event, on December 7, 2000, the government submitted a letter to the court detailing the reasons why an upward departure "would be well within [the court's] discretion," Gov't Letter of Dec. 7, 2000, at 1. Subsequently, by letter and in open court, the government repeatedly stated that its December 7 letter merely responded to the court's inquiry and that it was not the government's intent to advocate or recommend an upward departure.

At the December 19, 2000 sentencing hearing, the district court heard argument on Riera's contention that the government breached its plea agreement by arguing for an upward departure in its December 7 letter. The court held that the government did not breach the plea agreement because the government's letter was written in response to the court's specific inquiry and did not advocate a departure but merely informed the court that an upward departure would be within its discretion.

The court then sentenced Riera principally to the statutory maximum: eleven concurrent sentences of sixty months' imprisonment. With the avowed aim of imposing the statutory maximum in a matter consistent with the Guidelines, the court arrived at the sentence by first denying Riera all three acceptance of responsibility points. The court then increased Riera's offense level four additional levels by upwardly departing on the Guidelines Sentencing Table four levels pursuant to U.S.S.G. § 5K2.0, which permits departures for an "aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration" by the Guidelines. (Citation and internal quotation marks omitted.) The court explained that a § 5K2.0 upward departure was justified because of the large amount of money Riera stole, the relatively small punishment imposed for his prior crimes, the fact that he committed another crime while free on bail, the likelihood that he would commit future crimes, and more generally his "state of mind," Hr'g Tr., Dec. 19, 2000, at 15. The upward departure resulted in an offense level of twenty-three, requiring a sentence under the Guidelines of fifty-one to sixty-three months. The court expressly stated that it was not departing horizontally across the sentencing table by increasing Riera's criminal history category under U.S.S.G. § 4A1.3.

This appeal followed.

DISCUSSION

Riera contends that the district court abused its discretion by departing upwardly pursuant to U.S.S.G. § 5K2.0 and that resentencing must proceed before a different district court judge because the government breached the plea agreement by advocating before the sentencing judge for a departure. We agree (as does the government) that, at least on the current record, the district court's § 5K2.0 departure was an abuse of discretion, but we reject Riera's argument that the government breached the plea agreement. We therefore vacate Riera's sentence and remand for resentencing before the original district court judge, Judge Owen.

I. U.S.S.G. § 5K2.0 Vertical Departure

A. Standard of Review

We review the district court's decision to depart from the applicable Guideline range for abuse of discretion. United States v. Malpeso, 115 F.3d 155, 169 (2d Cir.1997) (citing Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)), cert. denied, 524 U.S. 951, 118 S.Ct. 2366, 141 L.Ed.2d 735 (1998). In so doing, we apply a three-part test:

First, we determine whether the reasons articulated by the district court for the departure are of a kind or a degree that may be appropriately relied upon to justify the departure. Second, we examine whether the findings of fact supporting the district court's reasoning are clearly erroneous. Finally, we review the departure for reasonableness, giving considerable deference to the district court.

United States v. Khalil, 214 F.3d 111, 124 (2d Cir.) (internal citations and quotation marks omitted), cert. denied sub nom. Abu Mezer v. United States, 531 U.S. 937, 121 S.Ct. 326, 148 L.Ed.2d 262 (2000). The first part of this test, which is the only one at issue in this appeal, is conducted de novo. See Malpeso, 115 F.3d at 169.

B. Analysis

Before departing pursuant to § 5K2.0, the district court must find "`that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration'" by the Guidelines. U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court departed upwardly pursuant to § 5K2.0 because it considered the otherwise applicable Guideline range to be "astonishingly low" in light of the fact that Riera embezzled nearly $1 million in connection with the current offense, defrauded his employer while free on bail, and committed many prior fraud crimes for which he received only "a slap on the wrist." Hr'g Tr., Dec. 19, 2000, at 22. These actions demonstrated to the district court "a state of mind that is being utterly unaddressed by these [G]uidelines." Id. at 15. The court expressed the fear that if Riera received yet another light sentence, he would be very likely to engage in criminal activity after his release from prison.

A district court may not depart from the applicable Guideline range, as the district court...