USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1798
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT F. CARROZZA,
Defendant, Appellant.
____________________
No. 92-1868
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND J. PATRIARCA,
Defendant, Appellant.
____________________
No. 92-2213
UNITED STATES OF AMERICA,
Appellant,
v.
RAYMOND J. PATRIARCA,
Defendant, Appellee.

____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________

Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Martin G. Weinberg with whom Oteri, Weinberg & Lawson, John

___________________
__________________________ ____
Cicilline, Kimberly Homan and Sheketoff & Homan were on briefs
_________ ______________
__________________
Raymond J. Patriarca.
James L. Sultan with whom Rankin & Sultan was on brief
________________
________________
Robert F. Carrozza.
James D. Herbert, Assistant United States Attorney, with w
_________________
A. John
Pappalardo, United
States Attorney,
Jeffrey Auerha
____________________
_______________

Assistant

United States

Attorney, and

Gregg L. Sullivan, Assist

__________________
United States Attorney, were on briefs for the United States.
____________________
September 16, 1993
____________________

CAMPBELL,
Patriarca pled guilty

Senior Circuit
Judge.
_______________________
to one count of conspiring

Raymond

J.

to violate

the

Racketeering Influenced

("RICO"), 18
18

U.S.C.

U.S.C.

and

Corrupt Organizations

1962(d), one count

Act

of violating RICO,

1962(c), four counts of interstate travel in aid

of racketeering, 18 U.S.C.

1952 (the "Travel Act"), and one

count of conspiring to violate the Travel Act.

He

was

sentenced by

Court for the District

the

United

States District

of Massachusetts to a prison

term of

97 months, three years of supervised release, a $50,000 fine,

$122,344

costs

supervision.
appeals

of

incarceration,

Pursuant to 18 U.S.C.

from the

district

court's

and

$3,954

costs

of

3742(b), the government

determination that

the

relevant conduct for sentencing purposes in this RICO case is

limited to

just the predicate Travel

against Patriarca
charged

and

predicates.

court's upward

Act violations charged

conduct relating
Patriarca

directly

appeals from

departure under U.S.S.G.

the

to

those

district

4A1.3 and from the

district court's imposition of the costs of incarceration and

supervision under U.S.S.G.
Robert

F.

5E1.2(i).

Carrozza

appeals

from

228-month

sentence imposed by the district court after Carrozza pleaded

guilty
Carrozza

to

49

argues

counts
that

of
the

racketeering-related
district

-3-

court's

offenses.

decision

to

"assume"

that

his base

offense

level

should be

adjusted

upwards for his role in the offense constituted plain error.

I.

Patriarca's Sentence
____________________
A.

Background
__________
Count One of the

seven

codefendants

with

conspiracy to violate

indictment charged Patriarca

participation

the RICO statute.

in

statute.

The

remaining

racketeering acts involving

in Count 30

They

illegal activities over a period

defendants as

role, after July 1984,

the Patriarca
in

conformity

including the
direction of

related
including

Family,
with

members of

a nationwide

as the boss and ultimate

The

named as
the

RICO counts alleged

the RICO

rules of

La

requirement that members commit

their superiors.

of 14 years.

La Cosa Nostra, and described

supervisor of the Patriarca Family.

acted

charged

different defendants,

criminal organization known as

that

of the RICO

charges alleged that the Patriarca Family

identified the

Patriarca's

counts

charged

a conspiracy to violate the Travel Act.

The RICO
had committed

63

criminal

Count Two

the same defendants with a substantive violation

and

It was further

enterprise,
Cosa

Nostra,

murder at the
alleged that

members of

the Patriarca Family were required

superiors

and

commit

including

murder.

criminal

Members

acts

of

the

at

to obey their

their

direction,

Patriarca Family

were

allegedlyrequiredto
sharetheirillegalprofitswiththeirsuperiors.

-4-

The
was in

the

indictment alleged
business of

loansharking, gambling,
the

commission of

most

of

them

by

that the

extortion,
and murder.

a total of

narcotics

trafficking,

The indictment charged

68 separate,

defendants other

Patriarca Family

than

predicate acts,
Patriarca.

The

predicate racketeering acts in which Patriarca was personally

named were five violations of (and conspiracy to violate) the
Travel

Act, four of

which were also

charged as substantive

violations against Patriarca in Counts 31, 36, 38 and 39.

Prior to
government
seek to

Patriarca's entry

informed the

court and

include specific acts of

to U.S.S.G.

1B1.3,

of a guilty

plea, the

Patriarca that

it would

relevant conduct, pursuant

in determining Patriarca's base offense

level, and

would further seek upward

U.S.S.G.

4A1.3

and

5K2.0.

As

departures pursuant to
an example

of relevant

conduct, the government then cited Patriarca's involvement in

the narcotics trafficking of Patriarca's associate, Salvatore
Michael Caruana.

As

an example

upward departure, the government

James Limoli,

which was

of

conduct justifying

an

cited the murder of Vincent

charged against one

of Patriarca's

codefendants.
On December 3, 1991, Patriarca
having entered

into any agreement

pled guilty without

with the government.

the sentencing proceedings that ensued, the government

the court

to consider

seven instances of

In
asked

relevant conduct,

-5-

along with the

base

charged conduct,

offense level for

in determining

his RICO offenses.

were (1)

Patriarca's involvement in the

Caruana;

(2)

fugitive;

(3)

Theodore Berns,

Patriarca's efforts
the

murder

which was

to

of Limoli;
committed by

Patriarca's

These instances

drug trafficking of
harbor
(4)

Caruana as
the

murder

a
of

Caruana purportedly

because

Berns

narcotics

was involved

activities

with

charged

Caruana's

against

wife; (5)

codefendant

the

Robert

Carrozza; (6) Patriarca's alleged authorization of an attempt

to murder Vincent Ferrara;

and (7) the harboring of

La Cosa

Nostra member, Alphonse Persico, while he was a fugitive from

justice.

Of

these

Carrozza's

drug

trafficking

indictment, these
acts

against

himself).
direct

it

the

Limoli

had

been

mentioned

codefendants

involvement

only

murder
in

(not

that

foreseeable to

all seven

Patriarca and

of,

the

that Patriarca

in

the

Caruana

activities were

after

had
drug
But

reasonably

were committed during,

RICO conspiracy

the

Patriarca

and the harboring of Caruana as a fugitive.

also argues

and

charged as predicate

government acknowledges

personal

furtherance

only

two acts having been

Patriarca's

The

trafficking

acts,

and in

Patriarca

had

joined it as its chief.

The

government

asserted

that

holding

Patriarca

responsible for the Limoli or the Berns murder would increase

his base offense level to 43, but that this level should then

-6-

be

reduced

by three

levels

because

minimal or minor under U.S.S.G.

Patriarca's role

3B1.2.

was

The guideline range

for an offense level of 40 and Criminal History Category I is

292-365

months

in prison.

The

government recommended

sentence of 292 months.

After numerous evidentiary
court

hearings, the

district

announced its

decision

to sentence

months imprisonment.

This was

an upward departure from

the

calculated guideline range of 63 to 78 months.1

The

court's
court

charged

of

law, limited

against the

Travel Act

RICO

The
is

applicable
U.S.S.G.

to

inclusion of

Because

level,

requires the proper

the

or

the charged

base offense level

"the

offense

racketeering

level

activity."

2E1.1 specifies more than one

court

base offense

relevant conduct.

court's view,

19

underlying

2E1.1(a).

offense

of

acts

Patriarca, the

conduct relating to

greater
the

predicate

as to

court observed that the

the
to

the specific

defendant (here,

violations) and

predicates.

base

97

concluded that relevant conduct in a RICO case was, as

a matter

for

Patriarca to

determined
to be
The core

that

1B1.3

ascertained by

the

question, in

the

was whether "underlying racketeering activity"

within the

meaning of

2E1.1(a)(2) referred

predicate

racketeering

acts

charged

only to

against

the

Patriarca

____________________
1. The district court's extensive sentencing memorandum is
published at 807 F. Supp. 165 (D. Mass. 1992).

-7-

himself, or whether it

also embraced other racketeering acts

including those of Patriarca's RICO

coconspirators committed

in the course of the RICO conspiracy.

In
relied

opting for

upon

three principles

guidelines are
guidelines
past

the former construction,

it felt

primarily a "charge offense"

are

generally intended

practices;

and

(3)

to

workable and fair.

of

the

instances

government had been charged

As to

defendant

murder.

system; (2) the

are

intended

to

both administratively

of

conduct

cited

by

the

against Patriarca personally

the second reason,

that there are no reported

a

(1) the

Regarding the first, the court noted that

seven

the indictment.

key:

duplicate nationwide

the guidelines

establish a sentencing system which is

none

were

the court

the court

in

noted

pre-guideline RICO cases in which

was sentenced

and

punished

for an

uncharged

With respect to the third, the court stated that the

government's position was administratively unwieldy: weeks or

months of evidentiary hearings could be required to decide if
a

defendant

committed

the

uncharged

relevant

conduct.

Finally,

the

fairness

of punishing

without

court

was

indictment,

concerned

a defendant
trial

by

about

the

for an

jury,

procedural

uncharged murder

and

proof

beyond

reasonable doubt.
The
government's

court

reasoned

position

would

that

raise

adoption

serious

of

the

constitutional

-8-

questions
avoid.

which

the district

Treating

the Limoli

court's
or

interpretation would

Berns murder

as

relevant

conduct would, the court believed, have the effect of raising

the

maximum penalty for the RICO violations from 20 years to

life imprisonment.
1963(a),
"the

The RICO penalty provision,

provides for a maximum sentence

RICO violation

which

the

which

case the

penalty

is based

maximum penalty
maximum

for murder,

imprisonment.

government, thought

includes life

which is

Because

of 20 years unless

on racketeering

sentence is

the

district

a three-level

activity for

imprisonment," in

life.

a level

18 U.S.C.

The

guideline

43 offense,
court,

is life

unlike

reduction for a

the

minor or

minimal role in the offense was unlikely, the court

that

if Patriarca

Berns

murders,

imprisonment.

was held
his

responsible for

probable

sentence

In the court's view,

reasoned

the Limoli
would

be

or
life

therefore, treating the

murders as relevant conduct (thereby increasing the guideline

range

from

63-78

months to

life)

would

violate

the due

process clause of the constitution by permitting the relevant

conduct determination "to be a tail which wags the dog of the
substantive offense."

McMillan v. Pennsylvania, 477 U.S. 79,

________
____________

88 (1986).
The government appeals from this determination.
B.

The Government's Appeal: Relevant Conduct

__________________________________________

-9-

"The legal determination as to the proper interplay

among

related

guidelines

is

subject

to plenary

review."

United States v. Schultz, 970 F.2d 960, 962 (1st Cir. 1992),
______________
_______

cert. denied, 113 S.

____________
de

novo the

Ct. 1020 (1993).

district

Therefore,

court's application

relevant

conduct guideline,

U.S.S.G.

U.S.S.G.

We conclude that the district court erred

2E1.1.

1B1.3, to

of the

we review

the RICO guideline,

when it limited relevant conduct to conduct in furtherance of

the predicate acts charged
relevant

conduct

reasonably

in

foreseeable

against Patriarca.
RICO
to

the

case

We hold

includes

particular

all

that

conduct

defendant

in

furtherance of the RICO enterprise to which he belongs.

We agree
the relevant

with the government that

conduct section,

1B1.32,

the language of

and its application

____________________
2. The relevant conduct
provides the following:

guideline,

in

pertinent

Unless otherwise specified, (i) the base offense

level where the guideline specifies more than one
base
offense
level,
(ii)
specific
offense
characteristics and (iii) cross
references in
Chapter Two, and (iv) adjustments in Chapter Three,
shall be determined on the basis of the following:
(1)(A)

all acts and omissions committed, aided,

abetted, counseled, commanded, induced,
procured, or willfully caused by the
defendant; and

(B)

in the case of a jointly undertaken

criminal
activity (a
criminal plan,
scheme,
endeavor,
or
enterprise
undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all reasonably foreseeable
-10-

part,

to the RICO guideline,

2E1.1, are clear, and

applied.

Section 1B1.3 calls for

guideline

elements

defined:
specifies

(1) the

on
base

more than

one

the

hence must be

determining the following

basis of

offense level,
base offense

relevant

conduct

as

where the

guideline

level, (2)

specific

offense characteristics, (3) cross references in Chapter Two,

and

(4) adjustments

2E1.13,

specifies

in Chapter
more

than

3.
one

The RICO
base

guideline,

offense

level,

____________________
acts
and
omissions
of
others
in
furtherance of the jointly undertaken
criminal activity,
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense . . . .
U.S.S.G.

1B1.3(a)(1).

The relevant conduct guideline quoted here is the

amended version of
1B1.3, which became effective on
November 1, 1992, after Patriarca was sentenced. Because the
1992 amendments to
1B1.3 only clarify the previous version
of the guideline, we may refer to the later version.
See
___
1B1.11(b)(2)
("the
court
shall
consider
subsequent
amendments, to the extent that such amendments are clarifying
rather than substantive changes").
3.

The RICO guideline provides the following:

2E1.1.

Unlawful

Conduct

Relating

to

Racketeer

2E1.1.

Unlawful
Conduct
Relating
to
Racketeer
______________________________________________
Influenced and Corrupt Organizations
Influenced and Corrupt Organizations
____________________________________

(a)

Base Offense Level (Apply the greater):

(1)

19; or
19

(2)

the offense level applicable

to
underlying racketeering activity.

the

-11-

including a cross reference

to "the offense level applicable

to the underlying racketeering

v. Masters, 978 F.2d
_______
"underlying
cross

U.S.S.G.
general,

activity" in

cert. denied,
____________

113

(reference to

2E1.1(a)(2) is
S.

Ct. 2333

(1993);

1B1.5, application note 1 (cross references may be

such

offense'").
level for

See United States

___ _____________

281, 284 (7th Cir. 1992)

racketeering

reference),

activity."

as

"to

Therefore,
2E1.1 to

the guideline
1B1.3

for

the

requires the

'underlying
base offense

be determined on the basis of

conduct as that term is described in

1B1.3(a)(1).

relevant

Section 1B1.3 states that "in the case of a jointly

undertaken criminal activity," relevant conduct includes "all
reasonably

foreseeable

furtherance of
U.S.S.G.

the

acts

and

omissions

jointly undertaken

1B1.3(a)(1)(B).

of

criminal

others

in

activity."

This is often referred to as the

accomplice attribution element of relevant conduct.

"Jointly

undertaken criminal activity" is defined in

1B1.3(a)(1)(B)

as

or

"a

criminal

undertaken by

plan,

scheme,

the defendant in concert

or not charged as a conspiracy."

_________________________________
Here,

the RICO enterprise

liable

for

enterprise
__________

with others, whether

_______

Id.
___

(emphasis

the Patriarca Family

"jointly undertaken criminal

potentially

endeavor,

the

activity."
foreseeable

added).
was a

Thus, Patriarca

is

criminal acts

of

____________________
U.S.S.G.

2E1.1.
-12-

others in furtherance of

that enterprise even though

he did

not personally participate in them.

The

application

relevant conduct in the

in concert with
1B1.3 at

others.

notes

expand

on

the

role

of

case of criminal activity undertaken

We quote from application note 2 to

length because

of the

guidance it

provides to

courts in determining when a defendant is responsible for the

conduct of others under the accomplice attribution element of
the relevant conduct guideline:
In the case of a jointly undertaken criminal activity,
subsection (a)(1)(B) provides
that a defendant is
accountable for the conduct (acts and omissions) of
others that was both:
(i)

in furtherance of the
jointly undertaken
criminal activity; and
(ii) reasonably foreseeable in connection with that
criminal activity.
Because a count may be worded broadly and include
the conduct of many participants over a period of
time, the scope of the criminal activity jointly
undertaken
by
the
defendant
(the
"jointly
undertaken criminal activity") is not necessarily
the same as the scope of the entire conspiracy, and
hence relevant conduct is not necessarily the same
for every participant. In order to determine the
defendant's accountability for the
conduct of
others under subsection (a)(1)(B), the court must
first determine the scope of the criminal activity
the
particular
defendant
agreed to
jointly
undertake (i.e., the scope of the specific conduct
____
and
objectives
embraced
by the
defendant's
agreement). The conduct of others that was both in
furtherance of, and reasonably
foreseeable in
connection with, the criminal activity jointly
undertaken by the defendant is relevant conduct
under this provision. The conduct of others that
was not in furtherance of the criminal activity
jointly undertaken by the defendant, or was not
reasonably foreseeable in connection with that
-13-

criminal activity, is
this provision.

not relevant

conduct under

In determining the scope of the criminal activity

that the particular defendant agreed to jointly
undertake (i.e., the scope of the specific conduct
____
and
objectives
embraced
by the
defendant's
agreement), the court may consider any explicit
agreement or implicit agreement fairly inferred
from the conduct of the defendant and others.
Note that the criminal activity that the defendant
agreed to jointly undertake, and the reasonably
foreseeable conduct of others in furtherance of
that
criminal
activity, are
not necessarily
identical.
For example, two defendants agree to
commit a robbery and, during the course of that
robbery, the first defendant assaults and injures a
victim.
The second defendant is accountable for
the assault and injury to the victim (even if the
second defendant had not agreed to the assault and
had cautioned the first defendant to be careful not
to hurt anyone) because the assaultive conduct was
in furtherance of the jointly undertaken criminal
activity
(the
robbery)
and
was
reasonably
foreseeable in connection
with that
criminal
activity (given the nature of the offense).
U.S.S.G. 1B1.3, application note 2.
Application

note 2

reflects recognition

accomplice attribution provision of

that the

1B1.3 operates to hold

a defendant responsible for the conduct of others even though

"a count may

be worded

many participants

broadly and include

over a period of time."

the conduct

of

So as to keep the

criminal

responsibility

sentencing

courts to

scope of the criminal

within

ascertain on

To do

1B1.3

an individual

requires
basis the

activity that the particular defendant

agreed jointly to undertake.

note 2.

bounds,

this, the

U.S.S.G.

1B1.3, application

court may consider

any "explicit

-14-

agreement
conduct

or
of

implicit agreement
the defendant

States v. Innamorati, No.

______
__________
June 17,

fairly

and others."

inferred
Id.;
___

91-1896, slip op. at 66

1993) (members of drug

from the
see United
___ ______
(1st Cir.

distribution conspiracy may

be held accountable at sentencing for different quantities of

narcotics,

"depending

on

the

circumstances

of

each

defendant's involvement"); United States v. Collado, 975 F.2d

_____________
_______
985,

992 (3d Cir.

attribution is
the

1992) ("the crucial

the extent of the

conspiracy"); Wilkens

factor in accomplice

defendant's involvement in

& Steer,

Relevant Conduct:
The
_______________________

Cornerstone of the Federal Sentencing Guidelines,

_________________________________________________

41 S.C.L.

Rev. 495, 511 (1990) ("liability might be justified for those

who

are

at the

operation")

top

directing and

(quoting 2

Criminal Law

W.

controlling

the entire

A. Scott,

Substantive

LaFave &

6.8, at 155 (1986)).

On remand here, therefore, the district

determine

(1)

the

scope

of the

explicitly or implicitly agreed

others; (2)
conduct

in

criminal activity;

activity.
under
under

furtherance
and (3)

foreseeable

in

criminal

activity

to by Patriarca jointly with

whether the criminal acts

were

reasonably

joint

court must

of

this

proffered as relevant
jointly

undertaken

whether the proffered

connection

with

acts were

that

criminal

These determinations will fix the relevant conduct

1B1.3 for purposes of
2E1.1.

Such

calculating the offense level

determinations are,

of

course, all

-15-

inherently fact-bound.

See,
___

e.g., Innamorati, slip

____ __________

op. at

66.
Rather

than applying

1B1.3

to

2E1.1 in

the

straightforward

manner discussed

limited relevant
were

conduct to

charged against

Travel

Act

activity"

treated
in

personally

doing so,
term

2E1.1(a)(2) as

that relevant conduct

conviction"

In

the

if it

the RICO

acts that

namely,

the

the

district court

"underlying

racketeering

"otherwise specified"

should not apply

(including

district court

only those predicate

Patriarca

violations.

improperly

above, the

to each "offense

conspiracy

count and

of
the

substantive RICO count) and instead

should apply only to the

predicate

See U.S.S.G.
___

Travel Act

violations.

1B1.3(a)

("Unless otherwise specified, . .

___________________________

. cross references

shall

of .

be determined

on the basis

. .

. . .

all reasonably

foreseeable acts . . . that occurred during the commission of

the offense of conviction . . .
______________________
was error.
of

"Subsection

construction

by

") (emphasis added).

(a) [of

1B1.3] establishes

specifying,

in

the

absence

This
a rule

of

more

explicit instructions in the context of a specific guideline,

the

range of

applicable
Background.
makes

conduct that

offense level
The

is relevant
.

."

U.S.S.G.

background commentary

clear that "[c]onduct that is

to determining

to

the

1B1.3,

1B1.3 further

not formally charged or

is not an element of the offense of conviction may enter into

-16-

the

determination

Section

of

2E1.1

the

applicable

specifically

racketeering activity"

includes

the

contains no

displacing the general rule in

uncharged conduct.

guideline
term

"underlying

explicit instructions

1B1.3 that relevant

In

range."

a RICO

conduct

case, there

is no

justification for limiting "underlying racketeering activity"

just

to

predicate

acts specifically

charged

against

one

defendant.4
We,
term
means

therefore, agree with

"underlying racketeering
simply

any

act,

activity"

whether

defendant personally, that qualifies

under 18 U.S.C.

the government that the

or

not

in

2E1.1(a)(2)
charged

against

as a RICO predicate act

1961(1)5 and is otherwise relevant

conduct

____________________
4. Aside from its departure from the relevant conduct
guideline, the district court's interpretation could raise
other problems. For example, in some circuits the government
need not allege specific predicate acts when it charges a
defendant with RICO conspiracy.
See United States v.
___ ______________
Glecier, 923 F.2d 496, 501 (7th Cir.), cert. denied, 112 S.
_______
____________
Ct. 54 (1991); United States v. Phillips, 874 F.2d 123, 127_____________
________
28 (3d Cir. 1989). A court sentencing a defendant in such a
case would be put in a difficult position if forced to apply
literally the district court's analysis. Because such cases
do not identify and charge the "underlying racketeering

activity," a court following the district court's approach

might be limited to the base offense level of 19 as specified
in
2E1.1(a)(1), even though the real offense conduct
underlying the conspiracy is considerably more serious than
other level 19 offenses.
5. Section 1961(1) defines
"racketeering activity"
to
include, inter alia, "any act or threat involving murder,
__________
kidnaping, gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, or dealing in narcotic or other
dangerous drugs, which is chargeable under State law and
punishable by imprisonment for more than one year; . . .
-17-

under

1B1.3.

Because

racketeering activity"
into
.

is a

the

reference

to

cross reference,

"underlying
1B1.3 comes

play and defines "the range of conduct that is relevant

. . ."

See U.S.S.G.
___

1B1.3, Background.

It follows that

the acts of relevant conduct proffered by the government, all

of

which are racketeering acts that

as predicate
conduct"

for

conviction,

offenses, come

they

attribution standards of
To

under the heading

sentencing Patriarca
provided

avoid

application notes

this
1 and 5

could have been charged

on

otherwise

the
meet

of "relevant

RICO counts
the

of

accomplice

1B1.3(a)(1)(B).
conclusion,
to U.S.S.G.

Patriarca
1B1.2.

cites

to

He argues

that these

application notes show that

racketeering
predicate acts

activity" should

be

charged against him.

the term "underlying

limited

to the

We think

specific

that neither

application note is applicable here.

Application note

1 to U.S.S.G.

1B1.2 states the

following:
This section provides the basic rules for
determining the guidelines applicable to
the offense conduct under Chapter Two
(Offense Conduct).
As a general rule,
the court is to use the guideline section
from Chapter Two most applicable to the
offense of conviction.
The Statutory
Index (Appendix A) provides a listing to
assist in this determination.
When a
____________________
[and] any act which is indictable under . . . title 18 . . .
section 1512 (relating to tampering with a witness, victim,
or an informant) . . . ."
-18-

particular statute
proscribes only a
single type of criminal conduct, the
offense of conviction and the conduct
proscribed by the statute will coincide,
and there will
be only one offense
guideline referenced. When a particular
statute proscribes a variety of conduct
that might constitute the subject of

different offense guidelines, the court

will determine which guideline section
applies based upon the nature of the
________________________________
offense conduct charged in the count of
_________________________________________
which
the
defendant was
convicted.
________________________________________
(Emphasis ours.)
Patriarca

relies

proposition that
crimes,

on

the

relevant

conduct pertaining

It is clear, however, from

application note, that the

the initial selection of
not

to

guideline.

to

for

the

composite

limit
There is

to

1B1.2

the full text of the

note is meant to guide

courts in

the applicable guideline in Chapter

cross references

within

no question here

guideline for RICO convictions is

note

portion

like RICO, must be limited to conduct charged in the

indictment.

Two,

emphasized

provides

particular

that the

applicable

2E1.1.
no

Thus, application

support

for Patriarca's

argument.
Application note 5 to
to

the

application

of

Application note 5 relates

states

that:

had

relevant

conduct

specifically to

to

2E1.1.

1B1.2(d), which

"A conviction on a count charging a conspiracy

to commit more than

defendant

1B1.2 is equally immaterial

been

one offense shall

convicted

-19-

on

be treated as if
a

separate

count

the
of

conspiracy for
commit."

each offense that the

defendant conspired to

Application note 5 in turn provides the following:

Particular
care must
be
taken in
applying
subsection (d) because there are cases in which the
verdict or plea does not establish which offense(s)
was the object of the conspiracy. In such cases,
subsection (d) should only be applied with respect
to an object offense alleged in the conspiracy
____________________________
count if the court, were it sitting as a trier of
_____
fact, would convict the defendant of conspiring to
commit that object offense.
Note, however, if the
object offenses specified in the conspiracy count
would be grouped together under
3D1.2(d) (e.g., a
____
conspiracy to steal three government checks) it is
not necessary to engage in the foregoing analysis,
because
1B1.3(a)(2) governs consideration of the
defendant's conduct.
U.S.S.G.

1B1.2, application note 5 (emphasis added).

In arguing

limit relevant
to

that

1B1.2(d) and

conduct in composite cases,

conduct "alleged"
_______

in the

indictment as

Patriarca notes similar language

2E1.1 and
2E1.1

that

underlying offense,
contained

in a

"[w]here

treat

separate

each
count

predicate acts,

Application note 1 to

there

is

underlying
of

Similarly, the introductory commentary

rules provides that "[s]ome

like RICO cases,

in the application notes to

the multiple count rules.

states

application note 5

more

than

offense

conviction

one

as

if

."

to the multiple count

offenses, e.g., racketeering and

____
conspiracy, may be 'composite' in that they involve a pattern
of conduct or scheme involving multiple
The rules

in this

offense level

Part

are to

for such

be

underlying offenses.

used to

determine

composite offenses from

the

the offense

-20-

level

for the underlying offenses."

3D1.2 refers specifically

may be convicted of
offenses

and

also

back to

Application note 8 to
1B1.2(d):

conspiring to commit several substantive

of

substantive offenses.

committing
In

one

commit one of the

or

such cases, treat

count as if it were several counts, each

to

"A defendant

U.S.S.G.

of

the

the conspiracy

charging conspiracy

substantive offenses.

and accompanying commentary."

___________________________

more

See
1B1.2(d)
______________

3D1.2, application

note 8 (emphasis added).

On the basis of this commentary, Patriarca contends
that the only way to apply
guidelines

the multiple count section of the

to a RICO conviction is to use the directions for

the more commonly applied conspiracy, and hence the rule of

1B1.2(d).6

We disagree.

First, the definition of "offense"

____________________
6. The
training staff
at
the Sentencing
Commission
apparently agrees.
In the latest issue of the Sentencing
Commission's
Most Frequently Asked Questions About the
______________________________________________
Sentencing Guidelines, Vol. VI, Dec. 1, 1992, Question 30
______________________
asks:
"The defendant was convicted of RICO (18 U.S.C.
1962).
How is the alternative base offense level at
2E1.1(a)(2) determined?" The answer provides the following:
Application note 1 to
2E1.1 instructs that where
there is more than one underlying offense (i.e.,
____
predicate act), each underlying offense should be
treated as if contained in a separate count of
conviction for the purposes of subsection (a)(2).
(See
1B1.2(d) and Application Note 5.) Each of
___
the underlying offenses, whether or not charged in
substantive counts of conviction, are treated as if
they were substantive counts of conviction, or
"pseudo counts."
Id.
The training staff's informational booklet states that
___
"[t]he information does
not necessarily represent
the
-21-

contained in the application notes to U.S.S.G.

limited to

charged offenses.

Instead,

1B1.1 is not

"offense" is defined

to mean "the

offense of conviction and all relevant conduct

_________________________

under
1B1.3 (Relevant Conduct) unless
_________________________________
is

specified

U.S.S.G.
stated

or

is

otherwise

clear

a different meaning
from

the

context."

1B1.1, application note 1(l) (emphasis added).

previously,

meaning;

2E1.1

therefore,

there

does
is

not
no

specify a
reason

to

As

different
interpret

"underlying offense" to exclude uncharged conduct.

Furthermore, although applying
convictions has

some

superficial

insurmountable

obstacles

First,

own terms,

by its

to

to a

there

practical

be

to counts

difficult to see

to a substantive

RICO conspiracy).

would

RICO

application.

is limited

Therefore, it is

1B1.2(d) could apply

(as opposed

appeal,

1B1.2(d)

"charging a conspiracy."
_____________________
how

its

1B1.2(d) to

RICO violation

Even overlooking

this

language, it would be impossible under application note 5 for

a court

to determine whether it "would convict the defendant

of conspiring to commit"
__________
where

the

violation

defendant
and the

is

an underlying offense in situations

charged with

underlying offense

substantive

is not

RICO

a conspiracy.

____________________
official position of the Commission, should not be considered
definitive, and is not binding upon the Commission, the
court, or the parties in any case."
Because
1B1.2(d), by
its own terms, is not applicable to RICO convictions, we do
not follow the training staff's suggestion.
-22-

Thus,

1B1.2(d)

is inapplicable

to nonconspiracy

offenses

such as a substantive RICO violation.

There are problems with applying
conspiracies as well.
1B1.2(d),
commentary7

the

It seems clear from the plain

application

that

1B1.2(d)

multiple object conspiracies

RICO

conspiracy,

1B1.2(d) to RICO

however,

notes,
was

enacted

charged in a
is

and

the
to

text of
official

deal

with

single count.

considered a

single

object

____________________
7. Official comments made by the Sentencing Commission at
the time that it enacted
1B1.2(d) clarify the purpose of
Application note 5:
[Application note 5] is provided to address cases
in which the jury's verdict does not specify how
many or which offenses were the object of the
conspiracy of which the defendant was convicted.
Compare U.S. v. Johnson, 713 F.2d 633, 645-46 (11th
_______ ____
_______
Cir. 1983)
(conviction
stands if
there
is
sufficient proof with respect to any one of the
objectives), with U.S. v. Tarnopol, 561 F.2d 466
____
________
(3d Cir. 1977) (failure of proof with respect to
any one of the objectives renders the conspiracy
conviction
invalid).
In order
to maintain
consistency with other
1B1.2(a) determinations,
this decision should be governed by a reasonable

doubt standard. A higher standard of proof should

govern the creation of what is, in effect, a new
count of conviction for the purposes of Chapter
Three, Part D (Multiple Counts).
Because the
guidelines do not explicitly establish standards of
proof, the proposed new application note calls upon
the court to determine which offense(s) was the
object of the conspiracy as if it were "sitting as
a trier of fact." The foregoing determination is
not required, however, in the case of offenses that
are grouped together under
3D1.2(d) (e.g., fraud
____
and
theft)
because
1B1.3(a)(2)
governs
consideration of the defendant's conduct.
U.S.S.G. App. C., para. 75, p.29 (Nov. 1, 1989).
-23-

conspiracy

with that

object

being the

United States v. Ashman, 979

______________
______
("The goal of

a RICO

violation of

F.2d 469, 485

conspiracy is a

RICO.

(7th Cir. 1992)

violation of

RICO.")

(quoting United States v. Neapolitan, 791 F.2d 489, 496

_____________
__________

(7th

Cir.), cert. denied, 479 U.S. 940 (1986)), petition for cert.
____________
__________________
filed sub nom.
_______________

Barcal
______

(U.S. April

1993)

6,

Congress intended
pre-RICO

law would

v. United States, 61
______________
(No. 92-1804).

that "'a

In

U.S.L.W. 3857
enacting

series of agreements

constitute

RICO,

that under

multiple conspiracies

could

under RICO be tried as a single enterprise conspiracy' if the

defendants
offense."8
(3d

have

agreed

to

United States v.
_____________

Cir.) (quoting

commit

substantive

RICO

Riccobene, 709 F.2d 214, 224-25

_________

United States v.
______________

Sutherland, 656
__________

F.2d

1181, 1192 (5th Cir. 1981), cert. denied, 455 U.S. 949 (1982)
____________
(internal

citation

omitted)),

cert.
denied sub
nom.
__________________________

Ciancaglini v. United States, 464 U.S. 849 (1983).

___________
_____________
Application notes
therefore, material

and 5

to

to determining whether

1B1.2

are

not,

relevant conduct

____________________
8. Rather than merely requiring a defendant to agree to
commit a substantive RICO offense, this circuit follows the
minority rule, which requires that a defendant agreed to
commit, or in fact committed, two or more specified predicate
crimes as part of the defendant's participation in the
affairs of the enterprise in order to convict the defendant
for a RICO conspiracy.
United States v. Boylan, 898 F.2d
_____________
______
230, 241 (1st Cir.), cert. denied, 498 U.S. 849 (1990);
____________
United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981),
_____________
______
cert. denied, 460 U.S. 1011 (1983).
This minority rule,
_____________
however, does not affect the general premise that a RICO
conspiracy is a single object conspiracy.
-24-

must

be

limited

defendant.
that

is

to

predicate

Instead,
relevant

"underlying

is

charged

against

1B1.3 determines the range of conduct

to

cross references

racketeering activity" in

background commentary to
that

acts

not formally

such

as

the

term

2E1.1(a)(2), and the

1B1.3 makes clear that "[c]onduct

charged

. .

may

enter

into the

determination of the applicable guideline sentencing range."

Because

the application of

1B1.3 to

2E1.1 is

straightforward and unambiguous, the district court

erred in

resorting to the general principles underlying the guidelines

and

the general

construe

rule

statutes

constitutionality."
491 U.S. 600, 611
the guidelines
the

Sentencing

op. at 4

to

avoid

that "courts

decision

See, e.g.,
___ ____
(1989).

as

United States
_____________

Commission's

to apply
effect to

commentary

United States v. Zapata,

______________
______

(1st Cir. July

their

v. Monsanto,
________

full force and

interpretive

should

to

"[C]ourts should strive

as written, giving

application notes."
slip

of construction

and

No. 93-1116,

19, 1993); accord

______

Stinson v.
_______

United States, 113 S. Ct. 1913, 1915 (1993); United States v.

_____________
_____________
Brewster,
________
1993).

No.

93-1046, slip

op. at

Absent specific provision in

(1st Cir.

July 28,

2E1.1 that "underlying

racketeering

activity" includes only charged predicate acts,

we see no principled basis to read such a limitation into the

provision.

-25-

Even were the application

2E1.1
the

of relevant conduct to

less clear than it is, we would have trouble accepting

three principles

cited

by the

district

court as

the

rationale for limiting relevant conduct to the predicate acts

actually

charged against

a defendant.

The

district court

felt that "the Sentencing Guidelines are closer to

a 'charge

offense' system than a

'real offense' system of punishment."

Patriarca, 807 F. Supp.

_________

at 190; U.S.S.G. Ch. 1, Pt. A, 4(a),

p. 5.

In the court's view, the reason the government did not

charge

the conduct at issue in this appeal as predicate acts

in the indictment is

because the government had insufficient

evidence

to sustain a conviction

Supp. at

191.

Because

for this conduct.

conduct "which

807 F.

the prosecutor

can

prove in court" is supposed to "impose[] a natural limit upon

the prosecutor's ability to increase a defendant's sentence,"

U.S.S.G.
would

Ch.1, Pt. A, 4(a),

be

improper

defendant's

sentence

for

p.5, the court

a sentencing

on the

basis

thought that it

court

to

increase a

of uncharged

predicate

acts.
Similar arguments have been

rejected by this court

and virtually every other circuit court to have addressed the

issue.

See, e.g., United States v. Mocciola,

___ ____ ______________
________

16-17 (1st
414,

424

891 F.2d 13,

Cir. 1989); United States v. Galloway,

______________
________
n.6

(8th

Cir. 1992)

denied, 113 S. Ct. 1420 (1993).

______

(collecting

976 F.2d

cases),

cert.
_____

While the district court is

-26-

correct that "for the most part, the court will determine the
applicable guideline by looking
_____________________
offender was convicted,"

to the charge

United States v.
_____________

of which the

Blanco, 888 F.2d

______

907, 910 (1st Cir. 1989), real offense principles enter

into

the

punishment prescribed

relevant

in

conduct guideline,

the

guidelines

1B1.3.

through

Breyer,

the

The Federal
___________

Sentencing Guidelines and the Key Compromises Upon Which They

_____________________________________________________________
Rest, 17 Hofstra L.
____
increases

Rev. 1, 11-12 (1988).

defendant's

Relevant conduct

sentence,

sometimes

very

significantly, despite the fact that it was not charged in an

indictment, e.g., Blanco,
____ ______
the fact that
that

a jury

("traditional

v.

Rumney,
______

need

714,

factors need

719

not

491

cert. denied, 488

____________

U.S.

908

sentencing factors, including

conduct,

891 F.2d

be

for

at 16-17;
(1st

Cir.)

pleaded and

(quoting United States v. Brewer, 853 F.2d

_____________
______

1326 (6th Cir.),

cert. denied,
_____________

867 F.2d

even despite

the defendant

E.g., Mocciola,
____ ________

sentencing

proved at trial")
1319,

may have acquitted

precise conduct.

United States
______________

888 F.2d at 910, and

only be

(1989).

U.S. 946 (1988)),

This

is

the applicability of

proven

evidence, not beyond a reasonable

by

relevant

preponderance of

doubt.

at 16-17; Galloway, 976 F.2d at 424 n.6.

________

because

the

Mocciola, 891 F.2d

________
As noted below,

in

pre-guideline cases courts likewise took into account untried

criminal conduct when exercising sentencing discretion.
fact

The

that the government has not charged and proven beyond a

-27-

reasonable doubt the conduct now asserted as relevant conduct

does

not prevent the increase in sentence resulting from the

relevant
deviate

conduct guideline.
from

this

We

principle

see no
when

special reason

dealing

with

to
RICO

conviction.
Nor are we as convinced as the district
sentencing
conduct
The

Patriarca

on

the basis

of

court that

uncharged

relevant

might be so unfair as to raise due process concerns.

district

court

assumed

responsible for either the

that

if

Patriarca

was

held

Limoli or Berns murder, Patriarca

would face a potential life sentence under the guidelines and

the RICO

penalty provision.

We

believe that

court was mistaken in this assumption.

the district

The RICO statute sets

the maximum prison sentence at 20 years unless "the violation

_________
is based
penalty

on a racketeering
includes

(emphasis added).

life

activity for

imprisonment."

We agree

statutory maximum sentence must

with the

which the

maximum

18 U.S.C.

1963(a)

government that

the

be determined by the conduct

alleged

within

Otherwise,

four

a defendant

arraignment
sentence

the

or

would

corners

would not

change of
be on

plea

the

of

the

know at
what

indictment.

the time

his maximum

charged offenses.

of his
possible

The charged
_______

conduct, if proven beyond a reasonable doubt, constitutes the

"violation" of
_________
charged

which a defendant is

conduct included no acts

convicted.

Patriarca's

such as would

result in a

-28-

life sentence.

The predicate acts

charged in the indictment

were all violations of the Travel Act, which does not carry a
possible

life sentence.

purposes within
uncharged as
penalty

is

counts.9

for

the 20-year maximum Patriarca

well as
fixed

The

Therefore, while

charged relevant conduct,

at twenty

years

relevant conduct

for

each

sentencing

is liable for
his maximum
of the

determination here

RICO

affects

only where, within that statutory range, Patriarca should be

____________________________
sentenced.

We
concern that
predicate

are also

unpersuaded

by the

sentencing Patriarca on the

acts would

be "inconsistent

district court's
basis of uncharged

with

the Sentencing

____________________
9. At oral argument, Patriarca contended that
if the
district court determines that Patriarca's base offense level
on the RICO counts is 43 (i.e., if the court decides that
____
Patriarca is responsible for a murder and that a minimal role
adjustment would be improper), then the court in applying
U.S.S.G.
5G1.2(d) should impose consecutive sentences,
which could total up to 65 years (20 years for each of the
two RICO counts and 5 years for each of the five Travel Act
counts). See United States v. Masters, 978 F.2d 281, 284
___ _____________
_______
(7th Cir. 1992) (affirming district court sentencing RICO
defendant to consecutive maximum sentences of 20 years on
each count, for a total of 40 years, in order to come as
close as possible to life imprisonment prescribed for level
43 offenses), cert. denied, 113 S. Ct. 2333 (1993). At least
____________
one member of the panel believes that serious constitutional
concerns may arise if the defendant ultimately receives the
equivalent of a life sentence on the ground of his connection
with a murder for which he was never indicted, tried or
convicted by a jury.
However, the district court may yet
ultimately sentence Patriarca to considerably less than 65
years.
Because the district court has not yet sentenced
Patriarca
under the relevant
conduct guideline as we
interpret it today, any decision as to the constitutional
implications, if any, of
a 65-year sentence would be
premature.
-29-

Commission's

intention

to

set up

administratively unwieldy."
While

it

is

true

that

efficiency

as

well

as

Commission

to require

applicable guideline
____________________

system

Patriarca,
_________

of

administrative

fairness

sentencing courts
by looking to

not

807 F. Supp. at 192.

considerations
procedural

which is

prompted

"to

the

determine the

the charge of

which the

offender was convicted," it is also clear that the Commission

intended real

offense principles

applicability

of

references.

See
___

application

of

various

adjustments,

Blanco, 888
______
real

to apply to

determine the

including

F.2d at 910.

offense

The

principles

may

cross

fact that
burden

sentencing court with additional fact finding is no reason to

ignore the Commission's compromise between "real offense" and
"charge offense" sentencing.
RICO

See id. at 911.

___ ___

defendant on the basis of

not, indeed,

prove to

are frequently
committed by

uncharged predicate acts may

be impracticable.

sentenced on
coconspirators.

Sentencing a

the basis of
In both

Drug conspirators
drug transactions

situations, the court

must determine the scope

of the criminal activity

by

reasonable

the

conduct

defendant,
proffered

the
as

relevant

foreseeability

conduct,

and

agreed to
of

the

whether

the

relevant conduct was in furtherance of the jointly undertaken

activity.

To be sure,

the wide range of

crimes covered by

RICO may inject new complexities, but, if so, the remedy lies

-30-

with the Sentencing Commission.

The courts are not empowered

to rewrite the relevant conduct guideline.10

Finally,

the

district

court's

observation

that

there are apparently no reported pre-guideline cases in which

a RICO defendant was

sentenced on the basis of

murder is not dispositive.

such

cases that

There could, of course, have been

went unreported

were not usually the subject

the guidelines.

556

(1980); Williams
________

v.

(1949); United States v.

_____________

to

used material information

their discretion

permissible, often very

See, e.g., Roberts

___ ____ _______

Sentences

of published opinions prior

in exercising

sentence within the

range.

or unappealed.

And courts often

from many sources

an uncharged

wide, statutory

v. United States,
_____________
New York,
_________

to set

337 U.S.

445 U.S. 552,

241,

Lee, 818 F.2d 1052, 1055

___

250-51

(2d Cir.)

("Any circumstance that aids the sentencing court in deriving

a

more complete

person's

and

background,

true picture
history,

or

regarding the

convicted

behavior

properly

is

considered.
the

For that reason, .

defendant was

charged that

. . , other crimes for which

neither tried

resulted

in

nor convicted,

acquittal

may

be

and crimes

used

by

the

____________________
10. We recognize that determining uncharged relevant conduct
could sometimes impose tremendous additional burdens on a
court. Relief may be afforded, however, in some instances by
the fact that district courts need not make findings as to
acts proffered as relevant conduct if the findings will not
reflect
the offense
level.
See
U.S.S.G.
3D1.4
___
(instructions on determining the combined offense level).
-31-

sentencing

court

in

determining

sentence")

(citation

omitted), cert. denied, 484 U.S. 956 (1987).

____________
We conclude that the
district

court

relevant

conduct to

Because

the

provide

district

no

principles put forward by the

adequate

charged predicate
court

reason

for

acts in

incorrectly

limiting

RICO cases.

interpreted

the

guidelines, it did not reach a host of other arguments raised

by

Patriarca

in an

attempt

to

avoid the

straightforward

application of
2E1.1.

the relevant conduct guideline,

These arguments include:

1B1.3, to

whether due process and the

Confrontation Clause require additional procedures, such as a

higher standard of proof
in

order to

relevant
proffered

hold

relevant

whether

occurred

prior

violates

the

statutory

the

to

the

Ex Post

Facto

authority;

defendant's

Patriarca

and whether

rejected by

of

the

plea

of
that

guidelines

though

Sentencing

of

in the

murders

whether

the

the RICO
relevant

Commission's

the government

arguing that Patriarca is

proffered relevant conduct.

for

Clause, even

the

proffered

otherwise disclosed

that date;

exceeds

for the

requires notice

effective date

beyond

guideline

been expressly

process

entry of

sentencing

extended

estopped from

due

conduct not

to

guilty;

conduct

Patriarca responsible

conduct; whether

indictment prior

offense

than preponderance of the evidence,

should be

responsible for the

Several of these arguments have

this circuit

and others.

See,
___

-32-

e.g., United States v.

Brewster, No. 93-1046, slip op.

at 5

____

_____________

(1st

Cir. July

28,

critical time for

is

not

prior

________
1993)

("Absent bad

faith

. .

the

disclosure of sentence-related information

to

the

taking

of

plea,

but

prior

to

sentencing."); United States v. David, 940 F.2d 722, 739 (1st

_____________
_____
Cir. 1991) ("It is well established that the guidelines apply
to a

defendant whose

effective

date

offense begins before

and continues

cert. denied, 112 S.

____________

after the

the guidelines'

effective date."),

Ct. 2301 (1992); Galloway, 976

________

F.2d at

421-22 (rejecting argument that relevant conduct provision is

not authorized by the Sentencing Reform Act).
not

necessary for

instance.

us to

decide these

However, it is

issues in

the first

On remand, the district court should consider, and

where appropriate, decide those issues that Patriarca chooses

to assert again.
In
Patriarca

last

contends

ditch

effort

that the

legal

to avoid
issue

resentencing,

of how

relevant

conduct is applied to the RICO guideline has been effectively

mooted

by

the

proffered acts

district

of relevant conduct.

the in the course of

was

as

a matter

established
relevant

to

concerning

the

Patriarca asserts that

5K2.0 and

of fact,

his criminal

conduct

findings

determining whether an upward departure

warranted pursuant

found,

court's

that

liability

allegations

4A1.3,

the court

the government
for five
the

Limoli

had not

of the

seven

and

Berns

-33-

homicides, the

Carrozza drug dealing, the

Ferrara "hit," or

the harboring of Alphonse Persico.11

This contention

has no merit.

expressly stated that because

must

be

limited

to

The district court

it found that relevant conduct

charged predicate

acts,

it

was

not

deciding "whether the crimes at issue with regard to relevant

conduct were
and/or

within the scope of

reasonably

Patriarca,
_________

foreseeable

807 F. Supp. at 196.

conduct in its upward

merely stated that

defendant

can

be

were in

of

it."

In discussing the purported

it was not persuaded that

coconspirators under
involved.

consequences

departure analysis, the district court

of, or personally participated

a

the defendant's conspiracy

Patriarca knew

in, these offenses.

accountable

for

the

1B1.3 without having

acts

However,
of

his

been personally

The standard is whether the acts of coconspirators

furtherance of

the jointly undertaken

were reasonably foreseeable to the defendant.

____________________

activity and
The seven acts

11. As to the remaining two proffered acts of relevant

conduct
Caruana's marijuana importation and fugitive
status
, Patriarca contends that the court's finding that
such conduct warranted a criminal history upward departure
and the fact that the indictment mentions drug trafficking in
general,
rather
than
particularly alleging
marijuana
importation, preclude consideration
of this conduct as
relevant conduct. Neither contention has merit. The court
treated the Caruana allegations under the upward departure
guideline,
4A1.3, only because the court thought this
uncharged conduct could not qualify as relevant conduct under
1B1.3.
Moreover, we think the indictment's generic
allegation of narcotics trafficking is sufficient to permit
the court to consider marijuana importation as relevant
conduct.
-34-

proffered as relevant conduct must be

reexamined in light of

this standard.
C.

Patriarca's Appeal
__________________
Patriarca

departure
court's

under

appeals from the district court's upward

U.S.S.G.

imposition

of

4A1.3 and
the

supervision under U.S.S.G.

costs

from

of

5E1.2(i).

the

incarceration

court's

upward

upwards under

and

Our holding that the

district court must resentence Patriarca on the

relevant conduct

district

the

basis of his

moots the

issue of

departure.

The

court

departed

4A1.3 on the

basis of its finding

that the

district

propriety of

the

government had proved by a preponderance of the evidence that

Patriarca

had "aided

and abetted

drug crimes

Salvatore Michael Caruana" from 1981 to 1983.

F. Supp. at 170.
the

Caruana

Because

conspiracy

sentencing purposes,

committed by
Patriarca, 807
_________

on remand the court will decide if

is

relevant

its utilization

conduct

as a basis

for

RICO

for upward

departure need not be considered here, and is vacated.

For

similar

challenge to his

reasons, we

must

reject Patriarca's

cost-of-imprisonment fine.

sentence, the district court ordered

of $50,000 pursuant to U.S.S.G.

As part

Patriarca to pay a fine

5E1.2(c), plus $122,344 for

the cost of his imprisonment, and $3,954 for the

supervision.

Patriarca,
_________

807 F.

of his

Supp. at

210.

cost of his
The later

-35-

portion

of

the fine

was

assessed pursuant

to

U.S.S.G.

5E1.2(i), which states the following:

Notwithstanding

the

provisions of

subsection (c)

[the minimum-maximum fine table] of this section,

but subject to the provisions of subsection (f)
[the defendant's ability to pay] herein, the court
shall impose an additional fine amount that is at
least sufficient to pay the costs to the government
of any imprisonment, probation,
or supervised
release ordered.
U.S.S.G.
Reform

5E1.2(i).
Act,

18

imposition of
cost of

Patriarca contends that the Sentencing

U.S.C.

a fine

3553(a),

to recompense

does

not

authorize

the government

incarceration or supervised release,

for the

and

5E1.2(i)

is therefore invalid.
The
question

few

agree

circuit

that

courts

the

to

have addressed

Sentencing Reform

authorize

the assessment

of a

costs

imprisonment.

of

Spiropoulos,
___________
States
______

defendant's
976 F.2d

155,

v. Hagmann, 950 F.2d

_______

fine solely

165-69 (3d

as to whether

does

to pay

Cir. 1992);

not

for the

United States
______________

175, 187 n.29

cert. denied, 113 S. Ct. 108 (1992).

____________

Act

this

v.

United
______

(5th Cir. 1991),

They disagree, however,

5E1.2(i) can be justified on

other grounds.

Compare United States

_______ _____________

v. Turner, No. 93-1148, 1993 U.S. App.

______

LEXIS 17472 (7th Cir.

July 14, 1993)

(costs

of confinement

reflect seriousness of the crime and increase deterrence) and

___
Hagmann, 950 F.2d
_______

at 187

criminals

basis

on the

imprisonment

an

("the uniform
of their

indicator of

practice of

fining

individualistic terms
the actual

harm each

of
has

-36-

inflicted upon society

is a rational means to

assist the

victims of crime collectively") with Spiropoulos, 976 F.2d at

____ ___________
168

("The cost

of imprisoning

a defendant

has little,

if

anything, to do with the amount that the defendant has harmed

his or

her victim(s),

appropriate method
Doyan,
_____

909

purpose
spare

the

therefore questionable

of restitution.");

F.2d 412,

of the

and is

416

taxpayers a

see United States v.

___ ______________

(10th Cir.

contested fine

is to

substantial

1990)

5E1.2(i)

as

("Whether the

punish, deter,
expense

generated by an intentional criminal act,

Guideline

as an

applied here

or to

that has

been

we cannot say that

bears

no

rational

relation to

the legitimate governmental interest in criminal

justice.").

The

government here argues

that

5E1.2(i)

is

merely a means of achieving the clearly authorized purpose of

punishing

a defendant based on the seriousness of his or her

offense.
We
question

do

at the

not

find

present

it appropriate
time.

First,

to

answer

Patriarca did

this
not

object

to

his

sentencing.
on

the

cost-of-imprisonment

we lack

the

benefit of

time

of

its considered

Absent plain error, we normally will not consider an

issue raised for the first time on appeal.

v.

the

Hence, the district court had no reason to focus

issue, and

views.

fine at

Newman, 982 F.2d 665,

______

672 (1st Cir.

See United States

___ _____________
1992), petition for
____________

cert. filed, 61 U.S.L.W. 3751 (U.S. April 22, 1993) (No. 92____________

-37-

1703); United States

_____________
1992);

v. Haggert,
_______

United States v.
_____________

Cir. 1991)

(refusing to

that the fine

statutory

Mondello, 927 F.2d

________

11 (1st

raised below

Guidelines are contrary

Because

the fine

Cir.

1463, 1468 (9th

consider argument not

provisions of the

authorization).

980 F.2d 8,

issue is

to
one

which has divided our sister circuits, we cannot see that the
district court's

alleged error

in assessing the

5E1.2(i)

fine was a "plain" one within the meaning of Fed. R. Crim. P.

52(b).

See United States v. Olano,

___ ______________
_____

113 S.

Ct. 1770, 1777

(1993).
In
resentenced

addition, our
taking into

decision that Patriarca

account uncharged

must be

relevant conduct

requires that we also vacate the fine portion of

Patriarca's

sentence.

Should the district court on remand determine that

Patriarca

must be sentenced at a

his

minimum and

likewise

maximum fine

increase.

range under

Moreover,

imprisonment necessarily
confinement.

higher base offense level,

depends

Patriarca's
upon

the

On remand, Patriarca can

imprisonment fine

under

Sentencing Reform Act.

length

cost

of

of

his

argue that a cost-of-

5E1.2(i) is
Should

5E1.2(c) will

inconsistent with the

the district court reject the

argument and Patriarca again appeal from the fine, that

be

the

appropriate

question.

time

Presently,

for

this

court

however, because

fine and because Patriarca

to

will

decide

we must

the

vacate the

did not raise the issue

below

-38-

hence

failing

to bring

the claimed

error to

the district

court's

attention for

focused consideration

inappropriate to decide whether

II.

we

find it

5E1.2(i) is valid.

Carrozza's Sentence
___________________
Defendant/appellant Robert F. Carrozza appeals from

a judgment of conviction and a 228-month sentence

the

district

court, after

Carrozza

pleaded

imposed by

guilty to

49

counts of racketeering-related offenses, including violations

of

the RICO

statute,

extortion, kidnapping,

loansharking,

narcotics distribution, gambling, obstruction of justice, and

intimidation of a witness.
court's
level

decision to

Carrozza argues that the district

"assume" that

Carrozza's

base offense

should be adjusted upwards for his role in the offense

constituted plain error.

After
four of
the

extensive

his codefendants

government.

Carrozza and

plea

negotiations, Carrozza

entered into plea

Pursuant

to Fed. R.

the government agreed that

of 228 months was "the appropriate

and

agreements with

Crim. P. 11(e)(1)(C),
a specific sentence

disposition of the case,"

constituting "a justifiable departure within the meaning of

6B1.2(c)(2)
Both

parties

of

the
agree

United States
on

appeal

departure" was understood to

Sentencing
that

this

Guidelines."
"justifiable

have been a downward departure.

-39-

Apart from the

two additional benefits

agreed sentence, Carrozza

in exchange for his plea

First, the government promised

his alleged

murder of

in

any

District of

federal

William Grasso and

Francis Salemme,

government promised that Carrozza

testify

of guilty.

not to prosecute Carrozza for

involvement in the murder of

the attempted

received

Sr.

Second, the

would not be subpoenaed to

grand jury

investigation

Massachusetts relating to the

in

the

activities of the

PatriarcaFamily occurringbefore thedate of theplea agreement.

The plea
made

expressly

acceptance

of

agreements for all

contingent

the

pleas

According to the government,

agreements
entering

reflected
the

the

agreements

upon
of guilty

five defendants

the

district

from

each

were

court's
defendant.

the interdependency of the plea

government's
eliminating

major
the

purpose
need for

in
any

trial, which the parties estimated would take from six months
to

a year or more.

defendants

Because removing some but not all of the

would not significantly reduce the time necessary

to try the case, the government

bargained for, and obtained,

the option to withdraw all five plea agreements if any of the

defendants moved successfully to withdraw his plea.

The

district

court

conditionally

accepted

the

guilty pleas pending consideration of the presentence reports

("PSR").

The preliminary PSR for

April 3, 1992.

Carrozza was completed on

The preliminary PSR calculated his applicable

-40-

guideline
criminal

range, based

on

an offense

history category of

therefore concluded

that the

level

IV, to be

of 33

188-235 months, and

agreed sentence of

was consistent with the guidelines.

and

228 months

The PSR determined

that

there were no factors warranting departure.

On April 9, the
this PSR, complaining

government filed its objections to

that some of the PSR's calculations of

Carrozza's offense level were too high and some were too low.
The key objection

made by

the government was

should have made an upward adjustment

3B1.1(a) for
several of

Carrozza's role

the applicable

guideline range

PSR

pursuant to U.S.S.G.

as an organizer

the offenses charged.

that the

or leader

in

The government calculated

to be 235-293

months, based

upon an offense level

of IV.

Finally,

of 35 and a criminal

the

government argued

history category
that

there

were

justifiable factors to support a downward departure.

Carrozza
PSR

on

April 17.

particulars

of

his

guideline range, he
the agreed

filed several specific

Although
own

Carrozza

did not

calculation

of

warranted.

discuss the

the

did argue that "a downward

upon sentence" was

dispute the

objections to the

applicable
departure to

Carrozza

government's calculations as to his

did not

role in the

offenses charged.
The Addendum to the PSR was completed on
The Addendum

accepted some

of

the government's

April 23.
objections

-41-

calling

for

calculations,
offense

downward
but

revision

rejected

objection because

"sufficient

information

the
the

in

the

government's
government had

particular episodes to delineate

__________
defendant within those episodes."

in

the

offense
role in

level
the

not provided

details

of

the

the individual roles of the

The Addendum recalculated

_____
the
of

total offense level to be 31, yielding a guideline range

151-188 months.

require "an
the

The Addendum noted that this range would

upward departure if

defendant to the amount

the Court were

to sentence

of time designated

in the plea

agreement [228 months]."

On

the same day that

disclosed,

the

sentencing

memoranda, each

agreed

upon

government

sentence

the Addendum to

and

Carrozza

arguing

constituted

filed

to the
a

the PSR was

separate

court that

justifiable

the

downward

departure.
The sentencing hearing was
At the

held on April 29, 1992.

outset of the sentencing hearing, the court explained

that under Rule 11(e)(1)(C), it could

agreements and impose the
or

reject

the

opportunity

to

agreements

either accept the plea

agreed-upon sentence in each case,

and

withdraw their

offer
pleas.

the

defendants

The court

articulated the disparate guideline ranges calculated

government and the probation office and then stated:
I think the most sensible thing to do is
to not resolve that dispute but to decide
-42-

an

clearly
by the

whether the 228-month sentence, which I

think is about 19 years, if it is,
indeed, an eight-month downward departure
as
the
Government
intends,
is
appropriate. . . .
Well, I am going to proceed . . . in the
following fashion:
I am not deciding
whether the Guidelines are 151 months to
188
months
or
[if]
Probation's
calculation is
followed, which would
involve 40-month
upward departure or
whether, as the Government contends, that
Mr. Carrozza has assumed up to now, [or]
at least up to the time of his plea, the
calculations might be 235 to 293 months.
I am going to analyze this in the context
of the question being whether
if the
Guidelines are 235 [to] 293 months, the
seven-month downward departure to 228
months
[as] called for by the plea
agreement is justifiable.
The

court explained

because
issues

that it was

Fed. R. Crim. P.
that will

not

imposed.

not resolving

32 does not

be material

When

asked

the dispute

require resolution of

to

the sentence

if anyone

procedure, the parties responded "no."

objected

to

be

to this

Consistent with their

prehearing positions, both Carrozza and the government argued

that

the agreed

upon

sentence

represented

justifiable

downward departure from the applicable guideline range.

The

court

months imprisonment,
release.

On

order relating
the

court

thereafter

sentenced Carrozza

to be followed by

the same

day, the

stated that

one

of the

228

60 months supervised

district court

to the presentence

to

reports.

In

entered an
this order,

justifications

for its

-43-

downward departures
the

for several

was that

departures "eliminated the need for both a lengthy trial

(which it was estimated would take

for

of the defendants

protracted

sentencing

relevant to the term

six months to a year) and

hearings

to

resolve

disputes

of incarceration to be imposed

on each

defendant."
On April

30, 1992,

the court entered

its "Second

Order Relating to Presentence Report" in Carrozza's case.

that

order, the court expressly

relied on Fed.

In

R. Crim. P.

32(c)(3)(D)(ii) as its justification for failing to calculate

the sentencing guideline range applicable to Carrozza:
With
regard
to
the
government's
objections
to
the PSR,
the court,
pursuant
to
Fed.
R.
Crim.
P.
32(c)(3)(D)(ii), did not decide whether
the applicable Sentencing Guidelines were
235 to 293 months as asserted by the
government or 151
to 188 months as
recommended by the Probation Officer.
Rather, the court assumed the Sentencing
Guidelines were a minimum of 235 months
and agreed with the government and the
defendant that if
the binding
plea
agreement, pursuant to Fed. R. Crim. P.
11(c)(1)(C) [sic], calling for a sentence

of 228 months represented a departure,

there were justifiable reasons for it.
Thus, the agreed-upon 228 month sentence
was imposed.
Judgment

was

entered

on

Notwithstanding the court's previous

merely

"assuming"

judgment indicates
to be

that

the

government

and imposed

1,

1992.

assertions that it

that the court found

235-293 months

May

was

correct,

was
the

the guideline range

a downward

departure for

-44-

justifiable reasons.

In a May

its

court

sentence,

the

7, 1992 memorandum explaining

once

again

stated

its

basic

assumption:
In the Presentence Report, the Probation
Department
calculated
Carrozza's
Sentencing Guidelines to 151
to 188
months.
The
government,
however,
contended that the proper calculation of
Carrozza's Sentencing Guidelines was 235
to 293 months. Carrozza's plea agreement
specified a sentence of 228 months, or 19
years, in prison. The court analyzed his
plea agreement on the assumption that the
required sentence represented a seven
month downward departure.
On
procedure

appeal, Carrozza

employed

by

the

contends that
district

court

the sentencing
was

patently

unlawful because the court failed to determine the applicable

guideline range.
A.

Plain Error Standard12

____________________

____________________
12. In
its
jurisdictional
statement, the
government
questions whether this court has jurisdiction over the
instant appeal.
The government notes that a defendant may
only appeal a sentence pursuant to a Rule 11(e)(1)(C) plea
agreement on the grounds that the sentence was imposed in
violation of law or as a result of an incorrect application
of
the guidelines.
18
U.S.C.
3742(c).
In his
jurisdictional statement, Carrozza asserts only that the
sentence was in violation of the law.
Because Carrozza
provides no authority for the proposition that a claim such
as he raises of procedural error in determining a sentence
may rise to the level of a claim that the resulting sentence
was imposed in violation of the law, the government argues
that this court is without jurisdiction to consider the
appeal. Regardless whether the district court's error rises
to the level of a violation of law, Carrozza clearly argues
in his brief that the district court failed to apply the
guidelines correctly when it "assumed" a role in the offense
adjustment.
That is
sufficient to give
this court
jurisdiction to decide this appeal.
See United States v.
___ _____________
-45-

Carrozza concedes that because he

to

the

district

court's

course

sentencing hearing, his sentence can

of

failed to object

conduct

during

the

be reversed only upon a

showing

of plain

error.

See
___

Fed.

R.

Crim.

P.

52(b).

Carrozza has failed to make such a showing here.

The

Supreme Court

recently interpreted

the plain

error rule in United States v. Olano, 113 S. Ct. 1770 (1993).

_____________
_____
In

Olano,
_____

the Court

appellate authority
P.

52(b):

be

"plain," and

rights."

reiterated

three limitations

to recognize errors under

(1) there must be

(3)

the

Fed. R. Crim.

an "error," (2) the error must

the error

Id. at 1777-78.
___

on

must "affec[t]

Even if a

substantial

defendant can establish

all three criteria, an appellate court has discretion not

to

review the error because Rule 52(b) is written in permissive,

not mandatory, terms.
that discretion was
U.S. 157, 160 (1936):

Id. at
___

1778.

The standard

to guide

stated in United States v. Atkinson, 297

_____________
________
appellate courts

should correct plain

forfeited errors affecting

substantial rights if

"seriously

affect[]

fairness,

reputation

of judicial proceedings."

the

integrity
Olano, 113
_____

the errors
or

public
S. Ct. at

1779.
We
committed

agree

with Carrozza

error when it

that

the

district court

"assumed" that Carrozza's guideline

____________________
Smith, 918 F.2d 664, 668-69 (6th Cir. 1990) (upholding the
_____
right of a defendant to file a similar appeal under 18 U.S.C.

3742(a)(1) or (a)(2)), cert. denied, 111 S. Ct. 1088 (1991).

____________
-46-

range was 235-293 months prior to its "downward" departure to

228

months.

a specific

Before accepting a plea agreement that contains

sentence under

sentencing court
"(1) the

Fed. R.

Crim. P.

is required to satisfy

agreed sentence is within

11(e)(1)(C), a

itself either that:

the applicable guideline

range; or (2) the agreed sentence departs from the applicable

guideline

range

for

justifiable

reasons."

U.S.S.G.

6B1.2(c).

To determine whether the sentence departs from the

applicable guideline range for justifiable reasons, the court

must first
and

determine what the applicable

then analyze

whether a

U.S.C.

3553(b)

1, Part

A (4)(b) of the

Commentary.
general
accept
U.S.S.G.

is authorized

and the general departure

In effect,

guideline
a plea

departure

guideline range is

See
___

rules in Chapter
U.S.S.G.

6B1.3,

6B1.2(c) instructs courts to apply

principles

under

1B1.1

Guidelines.

by 18

Fed. R.

(general

when determining
Crim.

whether

P. 11(e)(1)(C).

instructions

on

applying

to
See
___
the

guidelines).13
____________________
13. The government argues that Carrozza has waived his right
to have the district court determine an actual guideline
range by expressly agreeing to the district court's decision
to assume a guideline range. A deviation from a legal rule
is not considered an "error" if that legal rule has been
waived, as opposed to merely forfeited. See Olano, 113 S.
___ _____
Ct. at 1777 ("Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.") (internal
quotations omitted). We doubt that the sentencing guidelines
can be waived.
For example, we suspect that an agreement
between the government and a defendant not to apply the
guidelines would be ineffective. Because of doubts that the
-47-

In
mistakenly

sentencing
believed

that

Carrozza,
Fed.

authorized its decision not

Rule

law and

fact that

United States v.
_____________

Hand, 913
____

P.

court

32(c)(3)(D)

As we have stated,

32(c)(3)(D)14 apparently

inaccuracies in a presentence
of

Crim.

district

to determine an actual guideline

range for Carrozza's offenses.

error.

R.

the

relates

this was
to factual

report, not to mixed questions

defendant does
F.2d 854, 857

not dispute.
(10th Cir.

See
___
1990)

(defendant's

disagreement over

PSR's legal

conclusion that

defendant was not a minor participant does not allege factual

inaccuracies
32(c)(3)(D)).
F.2d 644,

in

the
But see
_______

PSR

and

does

United States v.
_____________

646 (2d Cir. 1991) (Rule

not

implicate

Rule

Rosado-Ubiera, 947
_____________

32(c)(3)(D) was violated

____________________
sentencing guidelines are waivable, we rest
today on Carrozza's failure to establish that
court's
error affects substantial
rights,
discretion not to recognize plain errors even
affect substantial rights.
14. Fed. R. Crim. P.
the following:
If

the

our decision
the district
and on our
when they do

32(c)(3)(D) provides in pertinent part

comments

of

the

defendant and
the
_________
defendant's counsel or testimony or other information
introduced by them allege any factual inaccuracy in the
__________________
presentence investigation report or the summary of the
report or part thereof, the court shall, as to each
___________
matter controverted, make (i) a finding as to the
____________________
allegation, or (ii) a determination that no such finding
is necessary because the matter controverted will not be
taken into account in sentencing.
Fed. R. Crim. P. 32(c)(3)(D) (emphasis added).
-48-

when court failed to resolve the

defendant's precise role in

the offense).
To be sure, a district court has inherent power not
to decide

disputes that are immaterial or

ultimate sentence.
determine

For example,

whether prior

defendant's criminal

irrelevant to the

a sentencing court need not

convictions

should be

history score if the

added to

addition will not

affect the defendant's criminal history category.

States
______

v. Lopez, 923 F.2d

_____

47, 51 (5th

We have also held

court need

between

choose

ranges when the

either range.
Cir.

that a sentencing

overlapping

same sentence would have

guideline

been imposed under

United States v. Ortiz, 966 F.2d 707, 718 (1st

_____________
_____

1992), cert. denied, 113

_____________

States
______

two

See United
___ ______

Cir.), cert. denied,

____________

111 S. Ct. 2032 (1991).

not

S. Ct.

1005 (1993);

United
______

v. Concemi, 957 F.2d 942, 953 (1st Cir. 1992); United

_______
______

States v. Bermingham, 855 F.2d 925, 934 (2d Cir. 1988).

______
__________
however,

the

two

sentencing factor
Instead,

if

ranges

did

not

overlap,

immaterial to Carrozza's

the

disputed

factor

was

nor

was

Here
the

guideline range.
decided

in

the

government's favor, Carrozza's sentencing range would be 235293 months, but

if the

issue was decided

as the

office recommended, Carrozza's guideline range

probation

would be 151-

188 months.
We have

also

intimated

sentencing court intends

in

the past

that

if

to depart, an error in applying the

-49-

guidelines

may prove to be harmless if the court makes clear

that it would

have departed to the same

of the exact guideline range.

914 F.2d

United States v. Plaza-Garcia,

_____________
____________

345, 347 (1st Cir. 1990).

suggested

that

sentence regardless

sentencing

court

We have never, however,

need

not

sentencing factor when one decision will result in

departure and another in
would

be inimical

departures.
(2d

Cir.

incorrect

the very

United States
_____________
1990)

court's ultimate

instead of

principle behind

government's

87-108 months, was

guideline
814 n.3
that

range of

irrelevant to

sentence because court indicated

down for substantial cooperation

a rule

argument

guidelines, resulting in

an upward

Such

v. McCall, 915 F.2d 811,

______

(rejecting

application of

151-188 months

to depart

to

a downward departure.

decide

an intent

an indication

____
that could not be reconciled with court's 108-month sentence,
which was at the high end of the correct guideline range).
The district court, therefore, erred when it simply
assumed that Carrozza's

guideline range was

and ignored the probation

should

with

obtuse decision
error

office's suggestion that the range

be 151-188 months.

sympathize

And while we

the district

court's

can understand and

desire

that may have seemed academic,

was "plain" in the sense

"obvious."

235-293 months,

to avoid

an

we think the

that it was both "clear" and

See Olano, 113 S. Ct. at 1777.

___ _____

That is enough to

-50-

pass

the second

hurdle

to appellate

authority under

Rule

52(b).
We now turn to the
in our

plain error

substantial rights.
every case,

third and often deciding factor

analysis
In most

whether

the error

affects

cases, "although perhaps not in

the defendant must

make a

specific showing

of

prejudice to satisfy the 'affecting substantial rights' prong

of Rule

52(b)."

Olano,
_____

113 S.

Ct. at 1778.

For

several

reasons, we think Carrozza has not made such a showing here.

First, Carrozza
evidence suggesting,
in the offense

has not

argued, and points

that an actual adjustment

would have been improper.

to no

for his role

Instead, Carrozza

merely assumes that the

district court's "assumption" was in

fact wrong,

that he

actual

and argues

guideline range

was prejudiced

might have
_____

that assumed by the district court.

record reveals that, in
assumption

been years

because his
shorter than

However, analysis of the

all likelihood, the district court's

that Carrozza's

base

offense level

was 35

was

correct.
The difference
probation
level

between

office's calculations

resulted

entirely

from

adjustment should have been given

drug conspiracy.
Carrozza's

the government's
of Carrozza's
whether

or

not

and

the

base offense
an

upward

for Carrozza's role in the

The probation office assigned a level 26 to

drug trafficking activity.

-51-

The government argued

that

this level

should be

increased by

four levels

to 30

because Carrozza was an organizer/leader of this activity and

because the
See
___

activity involved more

U.S.S.G.

3B1.1(a).

than five

Because

participants.

Carrozza's

narcotics

activities yielded the highest offense level among Carrozza's

various offenses
for

and, therefore, served as

the multiple count analysis

difference

was

crucial.

five

levels

the

under U.S.S.G.

Applying

analysis, both the probation

a starting point

the

3D1.4, the

multiple

count

office and the government added

probation

office arriving

at

a total

offense level 31 and a guideline range of 151-188 months, and

the government

calculating a

total offense

level 35

and a

guideline range of 235-293 months.

The
request

for

probation
a role

office

in the

rejected

offense

Carrozza's offenses, contending

to Carrozza's
are

rather

that there was

sufficient

evidence

activities of
104-page

five or

factual

replete with

that

insufficient

While the specifics with

the

provided

Carrozza directed

more participants.
to

the

evidence that Carrozza

regard

and extortion offenses

government

submission

any of

individual offenses to

role in his bookmaking

sketchy,

government's

adjustment for

evidence as to Carrozza's role in the

make such a determination.

the

the

more

than

narcotics

The government's

probation
directed and

office

is

organized

the drug trafficking

conspiracy.

Given this evidence, it is

-52-

understandable why Carrozza completely neglected to argue the

propriety

of

appellate

brief and below.

establish

role

that

the

substantial rights,
role

in the

offense

adjustment

in

his

Since it is Carrozza's burden to

his failure

court's

that an

least with

error

to argue that

adjustment would

the fact

appropriate at

the

district

offense

combined with

in

affected

a four-level

have been

improper,

adjustment would have

respect to the

been

crucial narcotics

conspiracy, undermines Carrozza's claim of prejudice.

To be

sure, a role in the offense adjustment is a mixed question of

law and fact.
examine

In most instances, an appellate court will not

such questions in the

analysis only to indicate

prejudiced

first instance.

We make the

the unlikelihood that Carrozza was

by the

district

A further

reason

court's failure

to decide

the

issue.

substantial

rights

is

the

for finding
significant

no error
benefits

affecting
Carrozza

received in exchange for his plea of guilty.

Carrozza's agreement
promised

not

prosecute

the murder

that could carry a

attempted

to a 228-month sentence, the government

to

involvement in

murder of

federal

Carrozza

of William

for

his

Grasso

alleged
an offense

sentence of life imprisonment

government promised
any

In exchange for

Frank Salemme,
not to

grand jury

Sr.

In addition,

subpoena Carrozza to

investigation

and the

in

the

testify in

the District

of

-53-

Massachusetts

relating

to the

This later

Carrozza,

who, as a made member of the Patriarca Family, had

the oath

of "omerta"

was

the Patriarca

Family.

taken

promise

activities of

probably significant

to protect

the secrets

Patriarca Family of La Cosa Nostra to his grave.

the

significant benefits

agreement,

it is difficult to

the district
him

Carrozza

court's acceptance

received

see how he

to

of the

In light of

from the

plea

was prejudiced by

of his plea

and sentencing

to a term of imprisonment upon which he had specifically

agreed.

See United States v. Ybabez, 919 F.2d 508, 510 (8th

___ _____________
______

Cir.
a

1990) ("We do not discern a miscarriage of justice when

defendant receives the sentence he bargained for in a plea

agreement."), cert. denied, 111 S. Ct. 1398 (1991).

____________
Finally, even
some

if Carrozza

form of prejudice from the

address

his role in the

exercise our

of

authority under Fed. R.

would be an

Crim.

inappropriate one for us

appeals

has made clear on numerous

should correct

affecting substantial rights

affect[] the
judicial

pass the third

to

discretion to recognize plain forfeited errors.

The Supreme Court

courts

to establish

district court's failure to

offense and thereby

and final hurdle of appellate

P. 52(b), the case

were able

fairness,

proceedings.'"

Atkinson, 297
________

plain

forfeited

only if the errors

integrity or
Olano, 113 S.
_____

U.S. at 160).

occasions that

public

errors

"'seriously

reputation

of

Ct. at 1779 (quoting

We see no such

serious effect

-54-

here.

Carrozza failed

to object in

circumstances strongly

indicative that
because

of

the

he wished to accept
benefits

it

the compromise sentence

conferred.

The

attendant

circumstances do not reflect discreditably upon the fairness,

integrity or public reputation of the proceeding.
We
resentencing

vacate
______

Patriarca's

in accordance

sentence

with this

sentence is affirmed.
________

-55-

and

opinion.

remand

for

Carrozza's