US v. Romano, Crim. No. B-88-24 (JAC).

• Decision Date: 23 October 1990
• Docket Number: Crim. No. B-88-24 (JAC).
• Parties: UNITED STATES of America v. Thomas ROMANO, a/k/a "T.R."
• Court: U.S. District Court — District of Connecticut

749 F. Supp. 53

UNITED STATES of America v. Thomas ROMANO, a/k/a "T.R."

Crim. No. B-88-24 (JAC).

United States District Court, D. Connecticut.

October 23, 1990.

John H. Durham, Asst. U.S. Atty., Chief, Crim. Div., New Haven, Conn., for the U.S.

James J. Ruane, Meehan & Meehan, Bridgeport, Conn., for defendant.

AMENDED RULING ON CONSIDERATIONS FOR SENTENCING ON REMAND

JOSÉ A. CABRANES, District Judge:

On November 29, 1989, the Court of Appeals affirmed the judgment of conviction of defendant Thomas Romano for conspiring to use extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894(a)(1). Also, the Court of Appeals reversed his sentence. Because it found that Romano was not a "manager or supervisor," it concluded that his offense level had been incorrectly increased by three points pursuant to section 3B1.1(b) of the Sentencing Guidelines. United States v. Lanese, 890 F.2d 1284, 1294 (2d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990). The case was "remanded for resentencing," id.

I.

On remand, the Government asks this court, for the first time, to find that the appropriate Criminal History Category for Romano is Criminal History Category II (rather than Criminal History Category I, as argued at the original sentencing). This would have the result of increasing the applicable Guidelines for imprisonment from a range of 46 to 57 months to a range of 51 to 63 months.

Romano claims, on the other hand, that the court may not consider the question of his criminal history category for the first time on remand, because the Government failed "to raise the issue it now presents. Such a pattern of omission constitutes the clearest evidence of a waiver of this issue by the Government." Memorandum of Law on Resentencing (filed Sept. 21, 1990) ("Defendant's Memorandum") at 2. Moreover, defendant claims that his constitutional right to be free of double jeopardy is also implicated. Id.; see also Defendant's Memorandum of Law in Opposition of sic Government's Proposed Findings of Fact and Conclusions of Law (filed Aug. 27, 1990) ("Defendant's Memorandum in Opposition") at 3. It is apparently Romano's view that any re-assessment on remand of the factors under the Sentencing Guidelines that yields a sentencing range higher than the range considered by the sentencing court at its original sentencing hearing would "chill the right of appeal," id., in violation of the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); see also United States v. Markus, 603 F.2d 409 (2d Cir.1979).

While resisting consideration of any new grounds that might aggravate his sentence at this juncture, defendant now urges the court to consider new grounds that would reduce his sentence. In particular, Romano asks the court to re-consider the question of acceptance of responsibility and to grant him a two-level reduction in his Guidelines offense level on the basis of his record while in custody since the time of the original sentencing hearing. The Government, in turn, argues that the sentencing court cannot re-open the question of acceptance of responsibility at this time in the circumstances presented because it is required to make its decisions on sentencing on the basis of the record as it stood at the time of the original sentencing date. In the Government's view, it is inappropriate for the court at this time to consider defendant's record while in the custody of federal correction authorities or, for that matter, any change of heart or disposition experienced by defendant in the aftermath of the original imposition of sentence. See Government's Memorandum Re: Sentencing (filed Oct. 1, 1990) ("Government's Memorandum") at 5.

The court afforded the parties an opportunity to call witnesses and present new or additional evidence on their claims at a hearing held on September 14, 1990. Romano submitted materials prepared by the Bureau of Prisons, see attachments to Defendant's Memorandum, and a two-page typewritten statement in support of his claim of acceptance of responsibility, see Court Exhibit 1. The Court also permitted the Probation Officer to re-interview Romano, and the Officer submitted a supplemental probation report to the Court together with a letter by Romano discussing his own state of mind, see Court Exhibit 2.¹ These additional materials have been made available to the parties. Other than this additional information, the matter was deemed submitted for determination by the court after both the Government and the defendant had rested their cases on the questions relating to the Sentencing Guidelines, and they submitted proposed findings of fact and conclusions of law based on the trial record and on the post-trial hearing held on September 14, 1990.

II.

The remand by the Court of Appeals was without qualifications or particular instructions. Both parties agree that in the circumstances presented, the issue of Romano's "managerial" or "supervisory" role has been definitively resolved by the Court of Appeals.² They otherwise disagree as to what this court may now consider on remand.

A. Post-Sentence Acceptance of Responsibility

Absent limiting instructions of some kind, it seems clear that, at this stage, the sentencing court may proceed as it might have proceeded in the first instance —that is, it may proceed, as the Government argues, to reconsider any and all factors that it might have considered in the first place on the basis of the record as it stood at the time of the original sentencing hearing (February 9, 1989). Accordingly, the court will not re-open the question of acceptance of responsibility, inasmuch as nothing in the record of this case, as it stood on February 9, 1989, suggested to the slightest degree that Romano had shown any remorse for his crimes or that he had accepted responsibility for them.³

Assuming that the court could at this time consider post-sentencing conduct as evidence of an acceptance of responsibility to support a finding that it would be appropriate to reduce the applicable Guidelines level, the court concludes that the full record does not warrant such a finding. As the Government points out in its Memorandum, Romano's letter to the court, see Court Exhibit 1, does not amount to an unequivocal acceptance of responsibility. Although defendant claims that his previous reference to having been "railroaded" referred to his having been unfairly labeled a "manager or supervisor" in the presentence report, the statement was in fact made in an interview with the U.S. Probation Office on December 19, 1989 — over one month before the presentence report was prepared. See Government's Supplemental Submission Re: Sentencing (filed Oct. 3, 1990) at 3 (submitting a substitute page 5 for that originally included in Government's Memorandum).

In addition, Romano claims that he did not appeal his conviction, as if to demonstrate that he had accepted both the jury's verdict and responsibility for his behavior. See Court Exhibit 1 at 1 ("Please take notice that I did not appeal my conviction, I appealed my sentence...."). But Romano and his co-defendant, Michael Vincent Lanese, did appeal their convictions, and the Court of Appeals affirmed them. Lanese, 890 F.2d at 1291. Romano was, of course, entitled to appeal, and the fact that he appealed his conviction plays no role whatever in determining now what the proper sentence should be in this case. The court refers to the fact of the appeal simply as a response to an argument Romano now presses — an argument based upon an apparent mischaracterization of the record.

B. Criminal History Category

The question of defendant's criminal history category is a different issue altogether. On remand, we are at precisely the place where this issue might properly have been raised by the Government in the first place. Defendant's claim that increasing the criminal history category would violate the Double Jeopardy Clause is without merit.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Supreme Court held that the Due Process Clause precluded increased sentences when the increase is motivated by vindictiveness on the part of the sentencing judge. Id. at 725, 89 S.Ct. at 2080. Pearce involved the limitation on imposition of a more severe sentence after conviction for the same offense upon retrial. Id. at 716, 89 S.Ct. at 2075-76. In United States v. Perez, 904 F.2d 142 (2d Cir.1990), our Court of Appeals decided that it would leave "for another day" the question of "how the enactment of the Sentencing Guidelines may have affected ... Pearce and its progeny. ..." Id. at 150. But this is not a case about a higher sentence after a new trial; it is simply a recalculation of the criminal history category that should have been applied under the Guidelines when the defendant was originally sentenced on February 9, 1989.⁴

Section 213(b) of the Sentencing Reform Act of 1984, as amended, provides that the Government may appeal a district court's sentence because, among other reasons, the sentence was less than the sentence specified in the applicable Guidelines range. 18 U.S.C. § 3742(b)(3). By allowing the Government to appeal a sentence imposed under the Guidelines, Congress contemplated that, on occasion, a sentence would be corrected by the district court on remand. See S.Rep. No. 225, 98th Cong., 2d Sess. 158, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3341; see also United States v. Rico, 902 F.2d 1065, 1067-68 (2d Cir.1990) (defendant in post-Guidelines case has no expectation of finality when sentence can be increased on appeal; new sentence may be greater than sentence being served); see also United States v. DiFrancesco, 449 U.S. 117, 134-36, 101 S.Ct. 426, 435-37, 66 L.Ed.2d 328 (1980) (defendant has no...