USA. v. Mannino

• Decision Date: 01 November 1999
• Docket Number: No. 89-,89-
• Citation: 212 F.3d 835
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. IGNAZIO ANTONINO MANNINO, a/k/a Nino (D.C.cr-00003-2) UNITED STATES OF AMERICA, v. EMANUELE SALVATORE MANNINO, a/k/a Sal (D.C.cr-00003-4) Ignazio Antonino Mannino and Emanuele Salvatore Mannino, Appellants NO. 98-1748 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 835

212 F.3d 835 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. IGNAZIO ANTONINO MANNINO, a/k/a Nino (D.C. No. 89-cr-00003-2)

UNITED STATES OF AMERICA, v. EMANUELE SALVATORE MANNINO, a/k/a Sal (D.C. No. 89-cr-00003-4)

Ignazio Antonino Mannino and Emanuele Salvatore Mannino, Appellants

NO. 98-1748

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: November 1, 1999

Filed May 15, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. Nos. 89-cr-00003-2 and 89-cr-00003-4) District Judge: Hon. Louis Charles Bechtle

[Copyrighted Material Omitted]

Peter Goldberger, Esq. (argued) Law Office of Peter Goldberger 50 Rittenhouse Place Ardmore, PA 19003-2276 Attorney for Appellants

Richard P. Barrett, Esq. (argued) Robert E. Courtney, III, Esq. Office of the United States Attorney 615 Chestnut Street Philadelphia, PA 19106 Attorneys for Appellee

Before: NYGAARD, McKEE, and ROSENN, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge.

Ignazio Antonino Mannino ("Tony") and Emanuele Salvatore Mannino ("Sal") appeal the denial of petitions they filed under 28 U.S.C. S 2255 in which they sought to vacate, set aside or correct sentences imposed on them following convictions for charges arising from their involvement in a heroin distribution conspiracy. We hold that the defendants' sentencings did not conform to Amendment 78 of the United States Sentencing Guidelines or our holding in United States v. Collado, 975 F.2d 985 (3d Cir. 1992), and we will therefore vacate their sentences and remand for resentencing consistent with this opinion.

I.

The heroin importation scheme the defendants were involved in is described in detail in United States v. Gambino, 728 F.Supp. 1150 (E.D. Pa. 1989), United States v. Gambino, 926 F.2d 1355 (3d Cir. 1991), cert. denied, 502 U.S. 956 (1991), and in the district court's Memorandum Opinion denying the defendants' S 2255 petitions in the instant case. Accordingly, we need only describe the defendants' involvement to the extent that it is helpful to our discussion of the issue before us.

In January 1989, a federal grand jury indicted eighteen individuals, including Tony and Sal Mannino, in connection with a heroin distribution organization that was based in New York City. Tony and Sal were subsequently tried and convicted of conspiracy to import and distribute heroin in violation of 21 U.S.C. SS 963 and 846. Sal Mannino was also convicted of money laundering in violation of 18 U.S.C. S 1956(a)(1). On December 6, 1989, Tony was sentenced to a period of incarceration of 324 months (27 years), and Sal was sentenced to 216 months (18 years) incarceration the following day.¹ Tony's base offense level under the Sentencing Guidelines was calculated as 36 in the Pre-Sentence Investigation Report ("PSI") because his offense involved at least 30 kilograms of heroin.² See PSI of Tony Mannino at P 62. However, that was increased by four levels because the court found that he was also a "leader" under the guidelines. See U.S.S.G. S 3B1.1(a). Accordingly, Tony's total offense level was 40. Since he had no prior criminal record, his criminal history category was I; yielding a sentencing range of 292-365 months. Sal's base offense level in his PSI was also 36, and this was also based upon evidence that the Gambino conspiracy had distributed between 10 to 30 kilograms of heroin during the life of the conspiracy. Sal also had a criminal history category of I, but he did not receive an upward adjustment. Accordingly, the Sentencing Guideline table yielded a sentencing range of 188-235 months imprisonment for Sal.

At sentencing, counsel for both defendants argued that the sentencing court could not determine the quantity of drugs each defendant was responsible for under the guidelines merely by relying upon the quantity of drugs attributed to the Gambino conspiracy. At Tony's sentencing, the court responded as follows:

I think because we have a conspiracy charge, kind of an ongoing offense, I think even as a legal matter, even a subsequent involvement in a conspiratorial activity can make a person liable under the law.

* * *

On page 19 [of the PSI], where it . . . states that you report that there was no evidence connecting [Tony Mannino] with Simone Zito importations. We will not change it; but I think your view of it is that, while that's all right from the view point of the law of conspiracy, it is not all right when we determine involvement and participation. . . .

[Defense counsel]: Exactly, Your Honor.

[The court]: . . . I think we should preserve your position, but the court won't change [the PSI].

App. 100a, 107. A similar exchange occurred at Sal Mannino's sentencing:

[The court]: This conspiracy went on for four years . . . . [T]he evil of a conspiracy is that it does go on. And that's why a person who joins late must, when they join late, they are liable for what went on before, if they do it knowingly and willfully. . . .

I don't think the guidelines, Mr. Fitzpatrick . . . . I don't think you will change the law of conspiracy so long as there are such insidious impacts upon the community . . . That's why those who join on the last day are liable for the first day and throughout. That's the problem here. And he is not charged with handling a kilo of this, just the conspiracy. I'm not arguing with you, I'm just giving a response to what I think are your good faith beliefs about your expectation to change the law of conspiracy.

App. 137-38a, (emphasis added). Both Tony and Sal filed a direct appeal after the court rejected these arguments and imposed sentence. However, even though both defense counsel had preserved the issue of the quantity of heroin that could be attributed to their respective clients under the guidelines at sentencing, neither counsel raised the issue on direct appeal where we affirmed both of the convictions and sentences. See United States v. Gambino, 926 F.2d 1355 (3d Cir. 1991).

The defendants subsequently filed petitions pursuant to 28 U.S.C. S 2255, arguing inter alia that the sentencing court violated their Fifth Amendment due process rights by misapplying the "relevant conduct" provisions of the United States Sentencing Guidelines as amended, and that appellate counsel had been ineffective in failing to raise the issue on direct appeal. The petitions were referred to a Magistrate Judge who issued a Report and Recommendation in which she concluded that the challenged sentencings failed to conform to the requirements of Amendment 78 of the Sentencing Guidelines, and that defendants' prior counsel had been ineffective in failing to raise the issue on direct appeal. The Magistrate Judge recommended that the court conduct new sentencing hearings and make individualized findings regarding each defendant's respective role in the conspiracy in order to properly decide how much heroin to attribute to each of them. However, the court rejected the Report and Recommendation and denied the defendants' S 2255 petitions.

The court held that the claims were defaulted because neither defendant had raised that issue on direct appeal, and neither could demonstrate the cause and prejudice for that default that was the condition precedent to a decision on the merits of their S 2255 petitions. See United States v. Frady, 456 U.S. 152, 168 (1982). The Court also concluded that the defendants could not establish the prejudice necessary to a decision on their petitions because the PSIs and the sentencing transcripts supported the sentencing court's finding that they were each responsible for at least 10 kilograms of heroin, if not for the entire 30 kilograms set forth in the counts of conviction. Accordingly, the court ruled that the petitions of both defendants lacked merit, and both petitions were dismissed. The Manninos then filed this joint appeal, and a panel of this court granted a certificate of appealability to review their claim that the sentencing court erred in failing to excuse their procedural default under S 2255, and in applying U.S.S.G.S 1B1.3.³

II.

As noted above, the defendants did not challenge the sentencing court's attribution of the heroin on direct appeal. In United States v. Essig, 10 F.3d 968, 977 (3d Cir. 1993), we held that the failure to raise a Sentencing Guidelines issue on direct appeal results in a waiver of that issue. Such a procedural default will not be set aside under S 2255 unless the petitioner can establish cause for the default and that prejudice resulted from it. Id . at 979. Accordingly, we must first address the government's contention that the defendants' failure to raise this issue on direct appeal precludes our review of the merits of the petitions.

The Manninos argue that appellate counsel was ineffective in failing to appeal the trial court's application of the Sentencing Guidelines, and that such ineffectiveness satisfies the "cause" prong of Frady. It is, of course, well established that a successful showing of ineffective assistance of counsel may satisfy the "cause" prong of a procedural default inquiry. See Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); Lines v. Larkin, 208 F.3d 153, (3d Cir. 2000); and United States v. Sanders, 165 F.3d 248, 250 (3d Cir. 1999). However, it can only do so if the ineffectiveness rises to the level of a constitutional deprivation under Strickland v. Washington, 466 U.S. 668 (1984). Coleman, 501 U.S. at 753. To establish such a deprivation the defendants must first demonstrate that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.⁴ If that is established, defendants must then show that they were prejudiced by counsel's deficient performance. Id. at 687. This requires that they demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Thus, we can not reach...