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2002 U.S. App. LEXIS 26427,*;16 Fla. L. Weekly Fed. C 130
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY GRAZIANO ROMANO,
Defendant-Appellant.
No. 00-11505
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2002 U.S. App. LEXIS 26427;16 Fla. L. Weekly Fed. C 130
December 20, 2002, Decided
December 20, 2002, Filed
PRIOR HISTORY: [*1] Appeal from the United States
District Court for the Middle District of Florida. D. C. Docket No. 99-00208-CR-ORL-22-B.
Anne C. Conway, Judge.
DISPOSITION: Vacated and remanded.
COUNSEL: For Romano, Anthony Graziano, Appellant: Rex Curry,
Attorney at Law, Tampa, FL.
For United States of America, Appellee: Gable, Karen L., Orlando, FL. Phipps,
Tamra, U.S. Attorney's Office, M.D. of Florida, Tampa, FL. Tylke, Roberta
Josephina, Assistant U.S. Attorney/Middle Dist. of FL, Orlando, FL. Raab,
Susan Humes, United States Attorney's Office, Jacksonville, FL.
JUDGES: Before TJOFLAT, RONEY and FAY, Circuit Judges.
OPINIONBY: TJOFLAT
OPINION: TJOFLAT, Circuit Judge:
On October 19, 1999, a Middle District of Florida grand jury returned a
two-count indictment against appellant, charging him, in Count One, with possession
of a Ruger Mini-14 .223 caliber semi-automatic rifle in September 1998, n1
after having been convicted of a felony, in violation of 18 U.S.C. §
922(g)(1), and, in Count Two, with possession of a destructive device on
May 11, 1998, that had not been registered to appellant in the National Firearms
Registration and Transfer Records, in violation of 26 U.S.C. §§
5841, 5845(a)(8), (f), 5861(d), and 5871.
n1 Such possession began on September 26, 1998 and ended on October 4,
1998, when appellant voluntarily surrendered the semi-automatic rifle firearm
(along with two other firearms) to deputies of the Orange County, Florida
sheriff's office.
On December 16, 1999, pursuant to a plea agreement, appellant pled guilty
to the Count One offense, and agreed to pay $ 400 in restitution to Diane
Setordepour. In the agreement, the Government promised not to oppose at
sentencing appellant's requests that: (1) the court set the base offense
level at level 14, pursuant to United States Sentencing Commission, Guidelines
Manual, § 2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm by a
"prohibited person"); (2) that the court adjust the base offense level to
level 19 pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A)(offense involving
3-4 firearms), 2K2.1(b)(4) (offense involving a stolen firearm), and 3B1.4
(using a minor to commit a crime); and (3) that the court adjust level 19
downward for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1,
provided that subsequent adverse information did not render such adjustment
"unwarranted."
In the Presentence Investigation Report (PSI), the probation officer assigned
to the case fixed the base offense level of the Count One offense at 14
and adjusted it upward to level 19, all in conformance with the plea agreement.
The PSI, however, made two other adjustments - each providing a two-level
[*3] increase of the base offense level - which the parties had not
contemplated, because they related to the Count Two offense, which would
be dismissed at sentencing. The probation officer made these adjustments
pursuant to U.S.S.G. § 2K2.1(b)(3), because the "offense" involved a
destructive device, and U.S.S.G. § 3C1.1, because appellant had obstructed
justice. Since the probation officer gave appellant no credit for acceptance
of responsibility, the PSI set the adjusted offense level at level 23. Coupled
with a criminal history score of V, the Guidelines prescribed a prison sentence
for a term of somewhere between 84 to 105 months.
Appellant interposed several objections to the PSI, among them that the
adjusted offense level should not have included the two-level increases provided
by sections 2K2.1(b)(3) and 3C1.1, since those increases were based on conduct
involved in the Count Two offense, which was to be dismissed. The probation
officer (who prepared the PSI) stated in the Addendum to the PSI that, due
to the constraints of time, he had been unable to hold a "position of parties
meeting" (for the purpose of discussing appellant's objections). Because
he had been unable to hold [*4] the meeting, the probation officer,
in the Addendum, adhered to the PSI as written, noting that the Government
"agreed" with his use of sections 2K2.1(b)(3) and 3C1.1 to enhance the base
offense level.
At the sentencing hearing, appellant renewed his objection to the sections
2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to
the Count Two offense and, therefore, were irrelevant. The prosecutor acknowledged
that, in negotiating the plea agreement, the parties had not contemplated
that appellant's base offense level would be enhanced for conduct that related
not to Count One, but to Count Two, which was not before the court. The
prosecutor nonetheless urged the court to apply the two Guidelines enhancements,
and the court did so. In addition, the prosecutor urged the court to depart
upwardly from the Guildelines sentence range (recommended in the PSI) on
the ground that "a criminal history category of five does not adequately
represent the defendant's prior criminal conduct . . . we are suggesting
. . . that there is a basis to move up to the next level on a guided departure
to a criminal history category of six." After saying this, the prosecutor
proceeded to [*5] argue at length (in five pages of the sentencing
transcript) why the court should depart. The court rejected the prosecutor's
request, adopted the factual recitations of the PSI and the Guidelines sentence
range it prescribed, and, after affording appellant his right of allocution,
sentenced him to a prison term of 105 months and dismissed Count Two of the
indictment. Six days after the court imposed sentence, the prosecutor moved
the court to order appellant to make the restitution called for in the plea
agreement. Twenty-three days later, the court entered the requested restitution
order.
In this appeal, appellant contends that the Government breached the plea
agreement by urging the court to consider information wholly unrelated to
the Count One offense and, based on such information, to enhance the Count
One base offense level by a total of four levels pursuant to sections 2K2.1(b)(3)
and 3C1.1 of the Guidelines. In response, the Government notes that appellant
failed to raise this issue before the district court. The Government is
right; hence, we review appellant's contention for plain error. We note
plain error if (1) error occurred, (2) the error is plain, (3) affects the
[*6] defendant's substantial rights, and (4) seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. United
States v. Candelario, 240 F.3d 1300, 1308-09 (11th Cir.), cert. denied,
533 U.S. 922, 121 S. Ct. 2535, 150 L. Ed. 2d 705 (2001).
The Government properly concedes that appellant was denied the entire benefit
of his plea agreement because it breached the agreement when the prosecutor
strongly endorsed the probations officer's recommendation (in the PSI) that
the court enhance appellant's base offense level under sections 2K2.1(b)(3)
and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error,
in that the two sections related to conduct wholly unrelated to the offense
to which appellant had plead guilty, possession of a firearm by a convicted
felon. The prosecutor knew that the application of those sections would
constitute error. What's more, he knew that by urging the court to apply
them, he - that is, the Government - was breaching the plea agreement then
and there. And, he must have known that because he was an officer of the
court, who regularly appeared before the court as an attorney for the United
[*7] States, the court might be inclined to accept his representations
as reliable, as constituting a correct statement of the law, and act accordingly
- which, indeed, is exactly what the court did. n2
n2 The prosecutor's final act - in his effort to obtain a sentence far
beyond what the parties contemplated when they executed the plea agreement
- was to urge the court to depart from the Guidelines sentence range, by
increasing appellant's criminal history category from V to VI. United States
v. Burns, 501 U.S. 129, 139, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123 (1991),
teaches that the defendant must be given "reasonable notice" that the court
is contemplating an upward departure from the Guidelines sentence range.
In United States v. Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001), we explained
Burns as follows:
"This notice must specifically identify the ground on which the district
court is contemplating an upward departure." [Burns, 501 U.S.] at 138-39,
111 S. Ct. at 2182. This Court has held that Burns requires that the notice
"must affirmatively indicate that an upward departure is appropriate based
on a particular ground" and that the defendant must be provided with notice
"setting forth the potential ground (or grounds) for the upward departure
within a 'reasonable' amount of time prior to the sentencing hearing." United
States v. Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).
In this case, the court had not provided appellant with notice that it
was considering a departure. Thus, had the court bowed to the prosecutor's
urging and departed from the prescribed Guidelines sentence range, the court
would have committed error that was plain. As noted above, though, the court
declined the prosecutor's invitation.
Because the error was "plain," we must ask whether it affected appellant's
substantial rights. The sentence range the Guidelines prescribes for an
offense level of 23 (the level the court used) and a criminal history category
of V is 84 to 105 months. The sentence range prescribed by an offense level
of 19 - the level yielded by omitting the section 2K2.1(b)(3) and 3C1.1 enhancements
- is 57 to 71 months. We have no difficulty in concluding that the use of
the higher sentence range affected appellant's substantial rights. Finally,
we ask whether the plain error seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. More specifically, the
question is whether the prosecutor's conduct produced such affect. We think
it obvious that it did.
We therefore vacate the district court's judgment, and remand the case
for a new sentencing hearing. n3
n3 Appellant challenges the court's untimely entry of the restitution order.
Given our disposition, we need not deal with the restitution aspect of the
case. The court, on remand, should consider the restitution issue anew.
Appellant also contends that he received ineffective assistance at sentencing.
His claim is moot; moreover, such claims should be brought in a collateral
proceeding under 28 U.S.C. § 2255.