United States v. Pileggi

• Decision Date: 02 January 2013
• Docket Number: No. 10–5273.,10–5273.
• Citation: 703 F.3d 675
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Giuseppe PILEGGI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

703 F.3d 675

UNITED STATES of America, Plaintiff–Appellee,

v.Giuseppe PILEGGI, Defendant–Appellant.

No. 10–5273.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2012.

Decided: Jan. 2, 2013.

ARGUED:Rudolph Alexander Ashton, III, McCotter, Ashton & Smith, PA, New Bern, North Carolina, for Appellant. Daniel Steven Goodman, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Lanny A. Breuer, Assistant Attorney General, John D. Buretta, Acting Deputy Assistant Attorney General, Ellen R. Meltzer, Patrick M. Donley, Fraud Section, Criminal Division, United States Department of Justice, Washington, D.C., for Appellee.

Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge DAVIS wrote the opinion, in which Judge GREGORY joined. Chief Judge TRAXLER wrote an opinion concurring in the result.

OPINION

DAVIS, Circuit Judge:

Giuseppe Pileggi appeals the restitution order that the district court entered after we remanded his case for resentencing. We previously held that the district court erred when it sentenced Pileggi to 600 months (50 years) of imprisonment. Specifically, we held that the court relied on an erroneous view of the facts concerning the diplomatic assurances given to Costa Rica when Pileggi was extradited to the United States to face charges arising from his participation in a fraudulent sweepstakes scheme. United States v. Pileggi, 361 Fed.Appx. 475, 477–79 (4th Cir.2010). In this second appeal, Pileggi contends that the district court lacked authority to reconsider the amount of restitution on remand. We agree. We therefore vacate the restitution order and remand with instructions to the district court to reinstate the previous restitution order directing Pileggi to make restitution in the amount of $4,274,078.40.¹

I.

A.

From April 2003 until May 2006, Pileggi, a Canadian citizen, and more than four dozen co-conspirators ran an elaborate fraudulent sweepstakes scheme out of Costa Rica that primarily targeted elderly United States citizens. Costa Rican authorities extradited Pileggi after the United States agreed that Pileggi “[would] not receive a penalty of death or one that requires that he spend the rest of his natural life in prison.” Pileggi, 361 Fed.Appx. at 476. Pileggi was tried in the Western District of North Carolina and convicted of the following offenses: one count of conspiracy to commit wire fraud, mail fraud, and travel fraud, in violation of 18 U.S.C. § 371, and 22 counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2.

At sentencing, the prosecutor stated that the United States had promised Costa Rica it would “not seek a sentence in excess of 50 years.” Pileggi, 361 Fed.Appx. at 476. The court sentenced Pileggi, then 48, to 600 months (50 years) in prison, followed by three years of supervised release. The court also ordered Pileggi to pay restitution of $3,952,985 ² and to forfeit $8,381,962 to the United States.

Pileggi appealed the 600–month prison term, arguing that the district court had relied on “clearly erroneous facts to arrive at the sentence, namely the [g]overnment's misrepresentation concerning the diplomatic assurances given to Costa Rica to secure [his] extradition.” Pileggi, 361 Fed.Appx. at 477–78. Pileggi did not appeal the restitution order, and the government did not file a cross-appeal.

We held that the district court had committed a significant procedural error by imposing “a de facto life sentence” in reliance on “clearly erroneous facts”: the government's “indisputably false information” about its agreement with Costa Rica. Pileggi, 361 Fed.Appx. at 477–79. Thus, we vacated “Pileggi's 600–month sentence and remand[ed] with instructions that the case be reassigned for resentencing.” Id. at 479. Our mandate stated that “the judgment of the District Court [was] vacated,” and remanded the case only for “further proceedings consistent with [our] decision.” ³

B.

At Pileggi's resentencing in September 2010, the district court imposed a sentence of 300 months (25 years) and ordered Pileggi to pay restitution of $4,274,078.40.

The government then asked to address the amount of restitution, noting that, in another case involving the same fraudulent sweepstakes operation in Costa Rica, this Court had found that “losses for restitution purposes had to be attributed to the individual rooms,” or call centers, where each defendant had worked. J.A. 186. (citing United States v. Llamas, 599 F.3d 381 (4th Cir.2010)). The government argued that the $4.2 million figure in Pileggi's case was “tainted” because the trial judge had chosen to “group [the rooms] all together”; although the government “[did]n't mind the $4.2 million figure,” it argued that Pileggi would likely contend on appeal that he had been wrongly held responsible for losses from other rooms. Id. at 187–88. The government thus asked the court to use the forfeiture amount—about $8.3 million—as the restitution figure, even though the government had “gone back” and done “another analysis which show[ed] that the loss is even higher.” Id. at 187–89.

The district court decided to limit restitution to the $4.2 million figure, but agreed to “hold that restitution component open” and allow the government to “file its amended figures” within 30 days. Id. at 190.

At a second hearing focused solely on restitution, the government argued that the $8.3 million forfeiture figure had resulted from a “two-generation” analysis of wire transfer records that had been done “as speedily as possible.” J.A. 202. Upon remand, the government had applied a “five-generation analysis” to the same records, which had “increased the restitution amount from [$]8.3 [million] to about some [$]20 million.” Id. The government asserted that “[t]his analysis was done specifically in response to Llamas.” Id. at 252.

The district court rejected Pileggi's argument that it lacked authority to reconsider the restitution amount, reasoning that “the issue ... was ripe for adjudication in light of the Llamas case.” J.A. 200, 205, 256. After hearing the testimony of the government's analyst, id. at 205–48, the court increased the restitution amount to $20,726,005.18, id. at 256.

II.

A.

Pileggi argues that the district court lacked authority to change the restitution amount, because our mandate remanded the case only to correct “the prison sentence [that] was in violation of the extradition agreement”; “the restitution amount was not addressed on [his] direct appeal,” and the government did not “file a cross-appeal claiming that the restitution amount was too low.” Opening Br. 16.

“We review de novo the district court's interpretation of the mandate.” United States v. Susi, 674 F.3d 278, 283 (4th Cir.2012).

“Few legal precepts are as firmly established as the doctrine that the mandate of a higher court is controlling as to matters within its compass.” United States v. Bell, 5 F.3d 64, 66 (4th Cir.1993) (internal quotation marks omitted). “Because this mandate rule is merely a specific application of the law of the case doctrine, in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” Id., quoted in Susi, 674 F.3d at 283.

“[T]o the extent that the mandate of the appellate court instructs or permits reconsideration of sentencing issues on remand, the district court may consider the issue de novo, entertaining any relevant evidence on that issue that it could have heard at the first hearing.” Bell, 5 F.3d at 67 (internal quotation marks omitted), quoted in Susi, 674 F.3d at 283. But the mandate rule “forecloses litigation of issues ... foregone on appeal or otherwise waived, for example because they were not raised in the district court.” ⁴

[W]hen this court remands for further proceedings, a district court must, except in rare circumstances, implement both the letter and spirit of the ... mandate, taking into account [our] opinion and the circumstances it embraces.

Id. Accord S. Atl. Ltd. P'ship of Tenn., LP v. Riese, 356 F.3d 576, 584 (4th Cir.2004) (“the court must attempt to implement the spirit of the mandate”).

We unhesitatingly conclude that the mandate rule barred the district court from reconsidering the restitution order on remand. Neither party had raised the issue before this Court, and the government is not permitted to “use the accident of a remand to raise ... an issue that [it] could just as well have raised in the first appeal.” ⁵ Although we “remand[ed] with instructions that the case be reassigned for resentencing,” we vacated only “Pileggi's 600–month sentence.” Pileggi, 361 Fed.Appx. at 479. Thus, the opinion limited the district court to correcting only the incarceration term of Pileggi's sentence. See Bell, 5 F.3d at 67.

The Supreme Court's recent decision in Pepper v. United States, –––U.S. ––––, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), does not counsel otherwise. In Pepper, the Supreme Court rejected the contention that the “law of the case” required a new judge, on remand, to adhere to the prior sentencing judge's downward departure from the advisory guidelines sentence. Pepper, 131 S.Ct. at 1251. The Pepper Court reasoned that “an appellate court when reversing one part of a defendant's sentence may vacate the entire sentence ... so that, on remand, the trial court can reconfigure the sentencing plan ... to satisfy the sentencing factors in 18 U.S.C. § 3553(a).” Id. at 1251 (internal quotation marks omitted). Because the appellate court had “set aside [the defendant's] entire sentence and remanded for a de novo resentencing,” the remand order had “effectively wiped the slate clean.” Id. (emphasis added).

Here, by contrast, we vacated only Pileggi's 600–month term, not his entire sentence.⁶ Moreover, Pepper does not “abolish waiver in the context...