U.S. v. Riggi

• Citation: 649 F.3d 143
• Decision Date: 10 August 2011
• Docket Number: Docket No. 09–4391–cr.
• Parties: UNITED STATES of America, Appellee,v.Giovanni RIGGI, also known as John Riggi, also known as Uncle John, Girolamo Palermo, also known as Jimmy Palermo, Charles Majuri, Stefano Vitabile, also known as Steve Vitabile, Francesco Polizzi, also known as johndoe6, also known as Frank Polizzi, also known as Francesco Polizzi, Anthony Mannarino, also known as Anthony Marshmallow, also known as Anthony Marshmallo, Louis Consalvo, also known as johndoe8, also known as Louie Eggs, also known as Frank Scarabino, Gregory Rago, Frank D'Amato, Bernard Nicastro, Frank Scarabino, also known as Franky the Beast, Giuseppe Schifilliti, also known as Pino Schifilliti, Charles Stango, also known as Charlie the Hat, also known as The Mad Hetter, also known as Goombs, also known as Goombsie, Joseph Collina Sr., Simone Palermo, also known as Daddy, Salvatore Timpani, also known as Sal the Barber, also known as Little Sal, Joseph Brideson, also known as Big Joey, Americo Massa, also known as Mike Massa, Martin Lewis, Ruben Malave, Michael Silvestri, Defendants,Philip Abramo, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

649 F.3d 143

UNITED STATES of America, Appellee,

v.Giovanni RIGGI, also known as John Riggi, also known as Uncle John, Girolamo Palermo, also known as Jimmy Palermo, Charles Majuri, Stefano Vitabile, also known as Steve Vitabile, Francesco Polizzi, also known as johndoe6, also known as Frank Polizzi, also known as Francesco Polizzi, Anthony Mannarino, also known as Anthony Marshmallow, also known as Anthony Marshmallo, Louis Consalvo, also known as johndoe8, also known as Louie Eggs, also known as Frank Scarabino, Gregory Rago, Frank D'Amato, Bernard Nicastro, Frank Scarabino, also known as Franky the Beast, Giuseppe Schifilliti, also known as Pino Schifilliti, Charles Stango, also known as Charlie the Hat, also known as The Mad Hetter, also known as Goombs, also known as Goombsie, Joseph Collina Sr., Simone Palermo, also known as Daddy, Salvatore Timpani, also known as Sal the Barber, also known as Little Sal, Joseph Brideson, also known as Big Joey, Americo Massa, also known as Mike Massa, Martin Lewis, Ruben Malave, Michael Silvestri, Defendants,Philip Abramo, Defendant–Appellant.

Docket No. 09–4391–cr.

United States Court of Appeals, Second Circuit.

Argued: Jan. 13, 2011.Decided: Aug. 10, 2011.

Inga L. Parsons, Marblehead, MA, for Defendant–Appellant.Steve C. Lee, Assistant United States Attorney (Andrew L. Fish, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.Before: JACOBS, Chief Judge, WESLEY and CHIN, Circuit Judges.DENNIS JACOBS, Chief Judge:

Defendant–Appellant Philip Abramo appeals from a judgment of conviction and sentence of the United States District Court for the Southern District of New York (Rakoff, J.), arguing that his rights under the Ex Post Facto Clause were violated by the application of the 2008 Sentencing Manual to a murder conspiracy that concluded in 1989. He contends that this alleged violation and his ignorance of his ex post facto rights render the appeal-waiver provision in his plea agreement unenforceable.

Abramo returns to this Court several years after we vacated his conviction and life sentence, holding that the admission of eight plea allocutions of non-testifying coconspirators was plain error under the intervening Crawford v. Washington decision. 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); see United States v. Riggi, 541 F.3d 94 (2d Cir.2008). On remand, Abramo pled guilty pursuant to a plea agreement to charges that carried a greatly reduced maximum aggregate sentence of eighteen years: conspiracy to commit murder, conspiracy to commit loansharking, and receiving the proceeds of extortion, in violation of 18 U.S.C. §§ 1959(a)(5), 371, and 880, respectively.

The plea agreement contained a broad appeal-waiver provision by which Abramo agreed to forgo appealing any sentence of eighteen years or less.¹ The parties also stipulated to several Guidelines particulars: first, that “[t]he Guidelines provisions in effect as of November 1, 2008, apply to this case”; second, that the appeal waiver was binding “even if the Court employ[ed] a Guidelines analysis different from that stipulated to [t]herein”; third, that the Guidelines sentence was the statutory maximum of 216 months. Joint Appendix at 59, 61, 63.

The plea was accepted by the district court at a July 9, 2009 plea colloquy. Abramo confirmed he was knowingly relinquishing the right to appeal.

However, Abramo's sentencing memorandum raised an interesting ex post facto issue. The charged murder conspiracy ended in 1989 upon the death of the targeted victim. The Guidelines for murder conspiracy were raised significantly in 1990: Conspiracies that “result[ed] in the death of a victim” were linked to the first-degree murder Guidelines. See U.S.S.G. §§ 2A1.1, 2A1.5(c)(1) (1990); id. App. C, amend. 311. Abramo argued that applying the 2008 Guidelines—as stipulated—would violate his rights under the Ex Post Facto Clause because this significant enhancement was added after the charged murder conspiracy had ended.² (Applying the 1989 Guidelines would have resulted in a range of 78 to 97 months.)

But Abramo did not move to withdraw his plea; he raised the issue only for the district “[c]ourt's attention as part of its review of [the 18 U.S.C.] § 3553(a) factors,” as a “relevant fact ... in assessing a fair and just sentence.” Joint Appendix at 107–09. Nor did the issue factor into his requested sentence, which sought a reduction in the 216–month statutory maximum for the time he served on related charges in Florida.³

When the issue was raised at sentencing, the district court viewed the discrepancy between the 1989 and 2008 murder-conspiracy Guidelines as evidence “that the guidelines are not operating in the manner in which they were intended to operate.” Joint Appendix at 157. The court indicated that the discrepancy therefore would not “make the slightest difference in [Abramo's] sentence,” id.; it instead referenced the nature of the offense itself:

[L]ooking at the conspiracy to murder, why is that not an offense that calls for a[n] 18 year penalty? ... [W]hat crime more calls out for deterrence, for punishment, for the most severe penalties that the court allows than getting together to murder a human being?

Joint Appendix at 172. But because the court had to select a Guidelines range, Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), it chose to apply the 2008 Guidelines. Abramo was sentenced to 186 months' imprisonment: the 216–month statutory maximum with a partial offset for the 70–month sentence he served in Florida.

This appeal followed. Abramo argues that the application of the harsher murder-conspiracy provisions in the 2008 Manual violated the Ex Post Facto Clause. He offers two theories as to why the appeal-waiver provision is unenforceable: first, his ex post facto rights were unwaivable; second, any waiver was unknowing, due to his ignorance of his ex post facto rights.

DISCUSSION

“Waivers of the right to appeal a sentence are presumptively enforceable.” United States v. Arevalo (Vigil), 628 F.3d 93, 98 (2d Cir.2010). We have “repeatedly upheld the validity of [appeal] waivers” if they are “knowingly, voluntarily, and competently provided by the defendant.” United States v. Gomez–Perez, 215 F.3d 315, 318 (2d Cir.2000). The “exceptions to the presumption of the enforceability of a waiver ... occupy a very circumscribed area of our jurisprudence.” Id. at 319. We construe plea agreements “according to contract law principles,” United States v. Yemitan, 70 F.3d 746, 747 (2d Cir.1995), but “because plea agreements are unique contracts, we temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards.” United States v. Woltmann, 610 F.3d 37, 39–40 (2d Cir.2010) (internal quotation marks and ellipsis omitted).

I

A violation of a fundamental right warrants voiding an appeal waiver. For example, we have voided appeal waivers where the sentence imposed was based on unconstitutional factors—such as race, see Gomez–Perez, 215 F.3d at 319, naturalized status, see, e.g., United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994), or the ability to pay restitution, see, e.g., United States v. Johnson, 347 F.3d 412, 415, 419 (2d Cir.2003). Similarly, we have voided waivers where a sentencing court “failed to enunciate any rationale for the defendant's sentence,” and thus “abdicat[ed] [its] judicial responsibility.” Woltmann, 610 F.3d at 40 (internal quotation marks omitted) (voiding waiver because sentencing court relied on plea agreement “to the exclusion of” the 18 U.S.C. § 3553(a) factors and a U.S.S.G. § 5K1.1 letter urging a below-Guidelines sentence).

On the other hand, other meaningful errors are insufficient to void an appeal waiver. We have enforced waivers where a sentence was arguably imposed contrary to a statutory requirement. See Yemitan, 70 F.3d at 748 (enforcing appeal waiver despite potential noncompliance with statement-of-reason requirement in 18 U.S.C. § 3553(c)(1), because the noncompliance—if any—did not present the “extraordinary circumstances” of the impermissible bias or abdication cases). We also enforced an appeal waiver notwithstanding the defendant's claim that the sentencing court failed to make certain downward departures prior to sentencing. United States v. Rivera, 971 F.2d 876, 896 (2d Cir.1992); see also United States v. Buissereth, 638 F.3d 114, 115–16 (2d Cir.2011) (enforcing appeal waiver despite district court's failure to: rule on [i] objections to the pre-sentence report (PSR) and [ii] requests for downward departures; adopt findings of PSR; discuss the § 3553(a) factors; and calculate applicable sentencing range).

The decisive considerations dividing these cases appear to be the nature of the right at issue and whether the sentence “was reached in a manner that the plea agreement did not anticipate.” United States v. Liriano–Blanco, 510 F.3d 168, 174 (2d Cir.2007). As to the nature of the right, a defendant pleading guilty “can waive elemental constitutional and statutory rights.” United States v. Braimah, 3 F.3d 609, 611 (2d Cir.1993); see also McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (“A defendant who enters [a guilty] plea simultaneously waives several constitutional rights....”); United States v. Waters, 23 F.3d 29, 36 (2d Cir.1994) (holding that ex post facto challenge to statute of conviction was waived by pleading guilty without preserving the issue). However, “a defendant may be deemed incapable of waiving a right that has an overriding impact on public interests,” United States v. Ready, 82 F.3d 551, 555 (2d Cir.1996), as such a waiver may “irreparably discredit[ ] the federal courts,” id. at 556 (quoting United States v. Mezzanatto, 513 U.S. 196, 204, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995))....