U.S. v. Scarano, 94-10213

• Decision Date: 20 February 1996
• Docket Number: No. 94-10213,94-10213
• Parties: 96 Cal. Daily Op. Serv. 1088, 96 Daily Journal D.A.R. 1836 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo SCARANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1471

76 F.3d 1471

96 Cal. Daily Op. Serv. 1088, 96 Daily Journal

D.A.R. 1836

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo SCARANO, Defendant-Appellant.

No. 94-10213.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1995.

Decided Feb. 20, 1996.

Michael H. Murray, Law Offices of Michael H. Murray, Pleasanton, California, for defendant-appellant.

Ross W. Nadel, Assistant United States Attorney, San Francisco, California, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: WALLACE, Chief Judge, THOMPSON, Circuit Judge, and REA, District Judge ^*.

REA, District Judge:

Appellant Ricardo Scarano appeals from a judgment and sentence of the district court imposing consecutive terms of incarceration for two counts of mail fraud under 18 U.S.C. § 1341. Scarano contends that the district court's decision to impose the sentences consecutively, rather than concurrently, violated the Double Jeopardy Clause. Alternatively, Scarano contends that the district court's imposition of consecutive sentences violated the Sentencing Guidelines. We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

I. BACKGROUND

On August 16, 1990, Appellant Ricardo Scarano entered guilty pleas pursuant to a plea agreement on two counts of mail fraud under 18 U.S.C. § 1341. Count One was a Guidelines count alleging Scarano's fraudulent acquisition of $38,906.00 in disability benefits from the Social Security Administration on May 3, 1990. ¹ Count Two was a pre-Guidelines Scarano appealed his sentence to this court. In a panel opinion, we relied on our earlier decision in United States v. Niven, 952 F.2d 289 (9th Cir.1991), to vacate the sentence and remanded for resentencing. United States v. Scarano, 975 F.2d 580 (9th Cir.1992). In Niven we held that a district court aggregating the losses from separate offenses for the purpose of an enhanced Guidelines sentence must impose the sentences concurrently, rather than consecutively, to avoid violating the Double Jeopardy Clause. Niven, 952 F.2d at 293. Because the Scarano district court had aggregated losses from the pre-Guidelines and Guidelines counts and enhanced Scarano's sentence on the Guidelines count under U.S.S.G. § 2F1.1 accordingly, the imposition of consecutive sentences for the two counts violated the Double Jeopardy Clause. Scarano, 975 F.2d at 586.

                count alleging Scarano's fraudulent acquisition of $102,163.72 in disability benefits from Guardian Life Insurance Company on May 8, 1986.   Scarano's plea agreement stipulated that, for the purposes of § 2F1.1(b)(H)(1) of the Sentencing Guidelines, the total loss caused by the offenses exceeded $120,000.00. 2  In addition, the Government stipulated that it would recommend Scarano's sentence be imposed concurrently with sentences imposed in the prior case of United States v. Scarano, CR 89-0230-JPV.   On June 28, 1991, District Court Judge John Vukasin issued a judgment sentencing appellant Scarano to consecutive terms of 60 months (Count One), and 45 months (Count Two), for a total of 105 months, to run concurrently with the sentence from United States v. Scarano, CR 89-0230 JPV. 3  In addition, Judge Vukasin imposed a term of supervised release on Count One to run concurrent with the term of supervised release imposed in the prior case, and ordered restitution to the Social Security Administration in the amount of $38,906.00 and Guardian Life Insurance Co. in the amount of $102,163.72
                

On October 8, 1993, after the death of Judge Vukasin, the case was reassigned to U.S. District Judge Eugene Lynch. On April 8, 1994, Judge Lynch resentenced Scarano on remand from this court. On Count One (the Guidelines count), Judge Lynch aggregated the losses for the purposes of U.S.S.G. § 2F1.1 and resentenced Scarano to a 60-month term concurrent to the sentences in the prior case (in addition to a three-year term of supervised release and the same restitution previously ordered by Judge Vukasin). ⁴ On Count Two (the pre-Guidelines count), Judge Lynch resentenced Scarano to a 26-month term of imprisonment to run consecutively to the 60-month term for Count One, and concurrently to the sentences imposed in the prior case.

In deciding to impose the Count Two sentence consecutively to the Count One sentence, Judge Lynch specified that

I'm doing this not because they combine the losses in the Guidelines count but because of his lengthy criminal--lengthy history of criminal conduct, including numerous arrests, and because there's serious questions as to whether he's truly showed any kind of reformation.

In a later written order denying appellant's 28 U.S.C. § 2255 motion to have the sentences corrected so as to run concurrently, the district court clarified that "[i]n sentencing Scarano to consecutive sentences ... it was not so sentencing him on the basis of an aggregation of the economic losses on the old law and the new law counts."

Appellant Scarano brings the instant appeal from the sentence imposed by the district court on remand from this court. He contends that: 1) the district court's imposition of consecutive sentences was contrary to this court's decision in Niven and violated the Double Jeopardy Clause; and 2) the district court's imposition of consecutive sentences, even if not constituting double jeopardy, was nonetheless improper under the Guidelines. Scarano requests that this court either: 1) order that the Count Two pre-Guidelines sentence run concurrently with the Count One Guidelines term (now expired); or 2) order that the Count Two pre-Guidelines sentence be reduced from 26 months to eighteen months (the difference between the 60-month statutory limit on Count One and the top of the 63-78 month Guidelines range computed by the district court after aggregating losses from both counts).

II. STANDARDS OF REVIEW

We review double jeopardy claims de novo. United States v. Blount, 34 F.3d 865, 867 (9th Cir.1994); United States v. Jernigan, 60 F.3d 562, 563 (9th Cir.1995). A district court's application of the Sentencing Guidelines is also reviewed de novo. United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir.1994); United States v. Fagan, 996 F.2d 1009, 1017 (9th Cir.1993). We review a district court's decision to impose Guidelines and pre-Guidelines sentences consecutively for abuse of discretion. See United States v. Hicks, 997 F.2d 594, 600 (9th Cir.1993).

III. DISCUSSION

A. Double Jeopardy and Niven

The Double Jeopardy Clause affords a defendant three basic protections: 1) protection against a second prosecution for the same offense after acquittal; 2) protection against a second prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 379-81, 109 S.Ct. 2522, 2525, 105 L.Ed.2d 322, reh'g denied, 492 U.S. 932, 110 S.Ct. 12, 106 L.Ed.2d 627 (1989); Gray v. Lewis, 881 F.2d 821, 822 (9th Cir.), cert. denied, 493 U.S. 996, 110 S.Ct. 549, 107 L.Ed.2d 546 (1989). Legislative intent defines the scope of "punishment," and once Congress has prescribed the appropriate punishment for an offense, the government may not impose the penalty on the accused more than once. See Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977) (stating that "the legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense...."); Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983) (stating that "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended").

In the sentencing context, we have previously concluded that double jeopardy concerns are implicated when a district court considers pre-Guidelines loss for a pre-Guidelines sentence and then counts the same loss again in calculating a Guidelines sentence. See Niven, 952 F.2d 289. In Niven, we expressed doubt that a sentencing court should aggregate losses among pre-- and post-Guidelines offenses at all, and recommended that the losses be apportioned so that pre-Guidelines offense losses do not influence the sentencing on Guidelines offenses. Id. at 294. If the sentencing court chooses to aggregate losses, Niven suggested that the sentences should be imposed concurrently, rather than consecutively, to prevent multiple punishments for the same offense. See id.; see also United States v. Caterino, 29 F.3d 1390, 1396 (9th Cir.1994) (interpreting Niven and concluding that where losses between pre-- and post-Guidelines offenses are not apportioned, consecutive sentences offend the Double Jeopardy Clause).

Our decision in Niven has been criticized by at least one other circuit as having overstated the narrow purpose of the Double Jeopardy Clause, i.e., simply to protect the We must recognize that the law has undergone a significant change since our decision in Niven. Both parties in this case agree that precedential force of our holding in Niven has been severely undercut, if not eliminated, by the Supreme Court's recent decision in Witte v. United States, --- U.S. ----, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), and our own subsequent opinion in United States v. Jernigan, 60 F.3d 562 (9th Cir.1995). Although neither of those opinions expressly overrules Niven, we must now revisit the double jeopardy issue to determine whether any remnant of our Niven analysis survives.

                defendant from receiving a sentence in excess of the statutory maximum penalty. 5  E.g., United States v. Morgano, 39 F.3d 1358, 1368 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2559, 132 L.Ed.2d 813 (1995) (suggesting that Niven 's reasoning may be "suspect" and may ignore well-established doctrine).

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