Professional Documents
Culture Documents
United States v. Rizzo, 1st Cir. (1997)
United States v. Rizzo, 1st Cir. (1997)
No. 96-2002
UNITED STATES,
Appellee,
v.
ANTHONY J. RIZZO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
____________________
Before
Dona
K. Stern, United States Attorney, was on brief for appellee.
____________________
August 11, 1997
____________________
STAHL,
Circuit Judge
. Defendant-appellant Anthony J.
Facts
We consider the facts as set forth in "the
presentence report, the sentencing transcript[,] and various
other materials before the district court."
United States v.
checks; Rizzo dealt directly with Savarese for the final two
-22
-3-
"do two more." Several days later, Rizzo gave Savarese two new
counterfeit checks, one in the amount of $9300.00 naming the
Great Atlantic and Pacific Tea Company, Inc. as payor and one
-44
1.
-66
Rizzo
2.
-77
3.
on counts one, two, and three, and four months of the term were
to run consecutively, pursuant to 18 U.S.C. S 3147.
district court also ordered Rizzo to pay $12,500 in
The
restitution.
Standard of Review
"[O]ur review of the legal conclusions and factual
determinations underlying the district court's departure
decision [is] . . . conducted under a unitary abuse-ofdiscretion standard." United States
v.
Cali, 87 F.3d 571, 580
(1st Cir. 1996). "Abuse of discretion review necessarily
'includes review to determine that the [district court's
exercise of] discretion was not guided by erroneous legal
conclusions.'" Id. (quoting
Koon v.
United States
, 116 S. Ct.
2035, 2045 (1996)). When the issue is whether or not the
district court believed it had authority to depart, we have
held that "[w]hat the district court thought was the scope of
its authority [to depart from the guidelines] is perhaps a
question of fact, but it is one that we must answer ourselves,
by reviewing the sentencing transcript. Whether the district
5.
review de novo."
de
United
States v.
Joyce, 70 F.3d 679, 681 (1st Cir. 1995), cert. denied, 116 S.
Ct. 1556 (1996)).
Discussion
On appeal, Rizzo advances two arguments that he
raised both in his objections to the Presentence Report and
during his sentencing hearing. First, he contends that the
district court erred when it denied his request for a downward
departure pursuant to U.S.S.G. S 5K2.0
and U.S.S.G. S 5G1.3(c)
6.
7.
other case, the sentence for the instant offense may be imposed
to run concurrently, partially concurrently, or consecutively
to the prior undischarged term of imprisonment to achieve a
-1010
Downward Departure
As we previously have stated, "a criminal defendant
United
States v. Springer, 28 F.3d 236, 237 (1st Cir. 1994).
Moreover, there is no
ex
post
facto problem because S 5G1.3(c)
did not change after Rizzo committed the offenses underlying
this appeal. See
United States
v.
Aymelek, 926 F.2d 64, 66 n.1
(1st Cir. 1991).
8.
473 (1st Cir. 1994). Rizzo asserts both that the district
9.
United
States v.
-1313
United
United
States v.
see
-1414
Sentencing
courts
have
had
abundant
opportunity
to
become
experienced with the Guidelines and
familiar
with
their
authority
to
make
discretionary decisions regarding whether
to depart.
Morrison, 46 F.3d at 132 (internal citations and footnote
omitted) (emphasis added) (quoting (
DeCosta, 37 F.3d at 8). As
in
Morrison, "viewed in harmony with its context, the [district
court's decision not to] depart[] reflects no misapprehension
on the part of the district court as to its departure power,
but simply its decision not to exercise that power in the
present case."
DiIorio,
10.
See
-1616
Id. In
Id.
See
-1717
se unfair. To the
within
broad
limits, to
11.
see
United
government.
See United
States v. Montoya, 62 F.3d 1, 4 (1st
Loss Calculation
-2020
record, Rizzo asserted that "all the checks were deposited into
the government's shell corporation . . . . Therefore, Mr.
v.
Galbraith, 20 F.3d 1054 (10th Cir.),
cert.
denied, 513 U.S.
889 (1994), and United
States v. Watkins, 994 F.2d 1192 (6th
Cir. 1992). In
-2121
stock to a pension fund that did not exist, defendant could not
have occasioned any loss even if the scheme had been
completed," the Tenth Circuit ruled that the applicable loss
calculation for purposes of U.S.S.G. S 2F1.1(b)(1) was zero.
Id.
Galbraith, the
have intended the loss. Second, it must have been possible for
the defendant to cause the loss. Third, the defendant must
-2222
Watkins,
-2323
Id. at 426-27. As in
Id.
-2424
cert.
Conclusion
For the reasons stated above, we affirm the sentence
that the district court imposed.
-2525