United States v. Dino Iacullo , 140 F. App'x 94 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11020 JULY 7, 2005
Non-Argument Calender THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 97-06023-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DINO IACULLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 7, 2005)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Dino Iacullo appeals his 235-month sentence, imposed after he pled guilty to
one count of conspiring to import cocaine in violation of 21 U.S.C. §§ 952(a) and
963. On appeal, Iacullo argues: (1) he is entitled to specific performance of his
plea agreement because the government breached the agreement by denying his
request for a transfer to a Canadian prison; (2) the district court unconstitutionally
set his base offense level at 38, under U.S.S.G. § 2D1.1(c)(1), based on a quantity
of cocaine not alleged in the indictment or agreed to by him in the plea agreement,
in violation of Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531, 159 L. Ed. 2d
403 (2004), which was extended to the federal Sentencing Guidelines in United
States v. Booker, 543 U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); (3) based
on the facts of this case, the district court erred by applying a two-level
enhancement, under U.S.S.G. § 2D1.1(b)(2)(A), for using a noncommercial aircraft
to import a controlled substance, and such an enhancement was in violation of
Blakely (now Booker); and (4) the district court erred in assessing three criminal
history points for a 1996 conviction, which Iacullo contends was based on the
same underlying conduct as the instant offense.1
“Whether the government has breached a plea agreement is a question of law
that this court reviews de novo.” United States v. Mahique, 150 F.3d 1330, 1332
(11th Cir. 1998). Because Iacullo raised his challenge to the § 2D1.1(c)(1)
1
Iacullo also asserts the district court erred when it declined to conduct a de novo re-
sentencing hearing, based on the court’s determination that it lacked the discretion to impose a new
sentence in the context of a 28 U.S.C. § 2255 petition raising new issues concerning alleged
ineffectiveness of counsel. The district court’s treatment of Iacullo’s request was entirely consistent
with our decision in United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir. 2000), and we
therefore find no error as to that claim.
2
enhancement in the district court, we review the Blakely/Booker issue de novo.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). We will reverse the
district court only if any error was harmful. Id. On the other hand, Iacullo raises
his Blakely/Booker argument concerning the § 2D1.1(b)(2)(A) enhancement for
the first time on appeal, and, accordingly, we review that issue for only plain error.
See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), petition for cert.
filed, (U.S. Feb. 23, 2005) (No. 04-1148). We review “purely legal questions
concerning use of the Sentencing Guidelines de novo,” and the “district court’s
application of the Guidelines to the facts with due deference.” United States v.
Murrell, 368 F.3d 1283, 1285 (11th Cir.), cert. denied, 125 S. Ct. 439 (2004)
(internal quotation marks omitted).
Upon thorough review of the record, as well as careful consideration of the
parties’ briefs, we find Booker non-constitutional error and conclude that the
government has not met its burden to show harmlessness. Accordingly, we vacate
and remand Iacullo’s sentence for resentencing, pursuant to the discretionary
Sentencing Guidelines scheme now required by Booker.
The relevant facts are straightforward. On March 11, 1997, by superseding
indictment, Iacullo and his co-conspirators were indicted with: conspiracy to
import cocaine into the United States, in violation of 21 U.S.C. §§ 952(a) and 963
3
(Count 1); two counts of importing cocaine into the United States, in violation of
21 U.S.C. § 952(a) and 18 U.S.C. § 2 (Counts 2 and 3); conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count
4); and two counts of possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 5 and 6). The superseding
indictment alleged that the scheme underlying the conspiracy counts took place on
various dates during the time period from August 1991 until May 1992.
According to the presentence investigation report (“PSI”), the conspiracy
involved the importation of multi-kilogram quantities of cocaine from Colombia,
through the Bahamas, and then into Florida, by using various private aircraft and
private boats. The general scheme employed by the conspiracy, which involved
three separate shipments, was as follows: (1) cocaine would be flown by private
aircraft from Colombia to a designated drop site in the Bahamas on Mayaguana
Island; (2) after various activities including, inter alia, counting and storing of the
cocaine, and the payment of fees, the cocaine would then be loaded onto another
aircraft and flown to a boat located off of Conception Island in the Bahamas; (3)
the boat would travel to a port in the United States and be transported to a
warehouse from which the cocaine was distributed.
Iacullo was “a trusted employee” and the “right hand man” of Richard
4
Goodman, one of the principal organizers of the conspiracy. Iacullo’s duties
included loading and unloading cocaine, transporting money, delivering cocaine to
the distributors and leasing the warehouse used to unload the smuggling vessel.
Iacullo also acted as a “bale kicker” onboard a private aircraft in an aborted drop
attempt. For the three shipments involved in the charged conspiracy, Iacullo
received fees totaling $200,000.
In the plea agreement, Iacullo agreed to plead guilty to Count 1, in exchange
for the government’s dismissal of the remaining counts. Iacullo admitted that the
quantity of cocaine involved in the offense, for purposes of the Sentencing
Guidelines range, was “at least 1,400 kilograms but less than 1,500 kilograms.”
The government agreed to recommend the following: (1) a three-level reduction
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1; (2) that Iacullo be
sentenced at the low end of the Guideline range determined by the district court;
and (3) that any sentence imposed run concurrently with a sentence Iacullo then
was serving for a 1996 conviction. The plea agreement also contained the
following statement regarding a potential transfer of Iacullo to a Canadian prison:
The defendant understands and agrees that the United States
Attorney’s Office does not have authority to effectuate a prisoner
exchange between the United States and Canada. Further, the United
States Attorney’s Office has no objections, should Defendant Iacullo
be otherwise eligible to participate in a prisoner exchange program, to
the defendant serving his United States sentences of imprisonment in
5
Canada.
The agreement concluded: “This is the entire agreement and understanding
between the United States and the defendant. There are no other agreements,
promises, representations, or understandings.”
At the plea colloquy, Iacullo stated that he wished to plead guilty, and he
admitted to the facts as outlined in the government’s proffer, which was materially
the same as the PSI’s description of the conspiracy, detailing Iacullo’s involvement
in the importation of approximately 632 kilograms of cocaine. The district court
confirmed that Iacullo had discussed his plea agreement thoroughly with his
lawyer before he signed it. On three occasions during the plea colloquy, Iacullo
indicated that his “underlying motivation” for the plea was, in part, so that the
government would not oppose his “treaty transfer” and he could serve his sentence
in Canada. The district court accepted Iacullo’s guilty plea and adjudicated him
guilty of Count 1. He then proceeded to sentencing.
According to the PSI, Iacullo’s base offense level was 38, pursuant to
U.S.S.G. § 2D1.1(c)(1), because he was responsible for more than 150 kilograms
of cocaine. The PSI recommended a 2-level enhancement, pursuant to U.S.S.G.
§ 2D1.1(b)(2)(A), for using an aircraft other than a regularly scheduled commercial
air carrier to import a controlled substance unlawfully. After a 3-level reduction
6
for acceptance of responsibility, Iacullo’s adjusted offense level was 37. Iacullo
received three criminal history points based on a 1996 conviction for conspiracy to
possess and attempt to possess with intent to distribute cocaine, for which he had
received a 293-month sentence. This prior conspiracy took place during
November and December 1995. With a total of three criminal history points,
Iacullo’s criminal history category was II. Iacullo’s resulting Guideline
imprisonment range was 235 to 293 months.
Iacullo filed several objections to the PSI, arguing, inter alia, that: (1) based
on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435(2000), his base offense level was improper because the indictment did not allege a
specific quantity of cocaine; (2) the two-level enhancement for use of a
noncommercial aircraft was not warranted by the facts of the case; and (3) he
should not have received three criminal history points for the 1996 conviction
because the district court in that case had considered the instant offense conduct as
relevant conduct in determining what sentence to impose.
At the sentencing hearing, the district court overruled Iacullo’s objections to
the calculation of his base offense level, finding that in the plea agreement, Iacullo
“agreed to or stipulated that the amount [of cocaine] was between 14 hundred and
15 hundred” kilograms, and therefore, that the PSI’s calculation of his base offense
7
level was proper. Regarding the aircraft enhancement, the court found that Iacullo
was “aboard the plane. He help[ed] off load the planes that fle[w] into this first
stop in the Bahamas. And then he is on the plane to be a bale kicker.” The court
concluded, therefore, that Iacullo’s conduct “comes within the scope of the 2 level
enhancement.”
Before announcing its sentence, the district court heard from Iacullo, who
expressed his desire to participate in a “treaty transfer” so that he could serve his
sentence in Canada near his family and asked the court to consider making a
recommendation to that effect. Pursuant to the plea agreement, the government
recommended that Iacullo be sentenced at the low end of the Guideline range and
that his sentence run concurrently with his 1996 conviction. The district court then
found, in accordance with the PSI, that the Guideline imprisonment range was 235
to 293 months and sentenced Iacullo to a 235-month term of imprisonment,
followed by 5 years’ supervised release. The court directed that the sentence was
to run concurrently with Iacullo’s sentence for the 1996 conviction, and also that
“the imprisonment period imposed in this sentence not exceed that imposed under
[the 1996 conviction] and that therefore they in essence run co-terminously, but in
any event not to exceed the sentence imposed” for the 1996 conviction.
After imposition of sentence, Iacullo asked the district judge to sign an order
8
indicating that he had no objections to Iacullo’s participation in “the treaty transfer
process.” The government stated: “Per the plea agreement we have taken no
position with regard to Mr. Iacullo’s transfer to Canada. And in fact when called
by Washington we specifically stated we have no objection to his transfer to
Canada.” The government noted, however, that it found the title of the order
confusing because it made it seem like the court was granting the treaty transfer.
The district judge stated that he could not grant a transfer, but that he would track
the language of the proposed order in the recommendation section of the judgment
and commitment order (J&C). In the J&C, entered on December 1, 2000, the
district court recommended to the Bureau of Prisons Iacullo’s “[p]articipation in
the Treaty Transfer program with Canada.”
Iacullo subsequently filed a 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence, arguing, among other things, that his counsel had been
ineffective for failing to file a timely notice of appeal from the J&C. Iacullo also
filed a memorandum in support of his § 2255 motion, and attached as an exhibit a
partial letter from the Office of Enforcement Operations (OEO), informing Iacullo
that his request for a transfer to Canada was denied based on (1) his domicile in the
United States; (2) his criminal record; (3) insufficient contacts with Canada; and
(4) that his transfer “would be inconsistent with the law enforcement needs of the
9
United States.” The district court granted Iacullo’s § 2255 motion as to the
ineffective-assistance claim, dismissed the remaining claims without prejudice, and
ordered resentencing.
At the resentencing hearing, Iacullo argued, inter alia, that he had been
“denied specific performance of the Treaty Transfer to Canada as part of the [plea]
agreement,” noting that he pled guilty because it was his “reasonable
understanding” that “the government was not going to oppose [his] Treaty Transfer
to Canada.” Iacullo asserted that this was part of a “side agreement” he had with
the government. The district court indicated its intent to impose the same sentence
that previously had been imposed, and sentenced Iacullo to 235 months’
imprisonment, to run concurrently and coterminously with the sentence imposed
for the 1996 conviction, followed by 5 years’ supervised release. The court also
recommended to the Bureau of Prisons that Iacullo participate in the treaty transfer
program with Canada. This appeal followed.
First, Iacullo argues that the government breached the plea agreement when
it denied him a “treaty transfer” to Canada. He represents that he thought the
transfer was “pre-approved,” based on the prosecutor’s representations. He urges
us to look to “what the parties reasonably understood to be the terms of the
agreement,” and to resolve any ambiguities against the government.
10
“[W]hen a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.
Ct. 495, 499, 30 L. Ed. 2d 427 (1971). In the event of a breach of a plea
agreement, there are two available remedies: “[t]he court can order specific
performance of the agreement or afford the defendant the opportunity to withdraw
the plea.” United States v. Jefferies, 908 F.2d 1520, 1527 (11th Cir. 1990). We
interpret and apply plea agreements using objective standards. See United States v.
Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004).
If the language in a plea agreement is ambiguous, then this Court will
consider extrinsic evidence to determine the defendant’s reasonable understanding
of the agreement, and will read the ambiguous provision against the government.
Id. at 1105-06. Otherwise, if the agreement is not ambiguous, then this Court is
“limited to the unambiguous meaning of the language in the agreement.” Id. at
1106.
Here, the language of the plea agreement is unambiguous and it is clear that
the government did not breach the agreement. According to the terms of the plea
agreement, Iacullo understood that the U.S. Attorney’s Office “does not have the
authority to effectuate a prisoner exchange,” and that the Office promised to offer
11
“no objections” if Iacullo was found to be “otherwise eligible” for a transfer. The
unambiguous meaning of these provisions is that the U.S. Attorney’s Office would
not oppose Iacullo’s request for a treaty transfer to Canada if he was found to be
eligible. However, Iacullo was not found to be eligible for the transfer and the
OEO denied his transfer request for several reasons, according to its letter.
Moreover, it appears that the U.S. Attorney’s Office fulfilled its promise when the
OEO asked it for a recommendation regarding the transfer request, and it replied
that it “would not oppose” a transfer, and that the Office took no position on the
matter.2
Accordingly, because the unambiguous terms of Iacullo’s plea agreement
only required the U.S. Attorney’s Office to not object to Iacullo’s participation in a
prisoner exchange program with Canada, there was no breach of the agreement
and, therefore, an order of specific performance is not warranted.3
2
Iacullo attempts to create an ambiguity by pointing to statements he made at his plea and
sentencing hearings which indicate his desire to be transferred to Canada. Even if we were to
consider these statements -- which we need not do, given our conclusion that the agreement was
unambiguous, and thus resort to extrinsic materials is not appropriate, Copeland, 381 F.3d at 1105-
06 -- our review of the transcripts convinces us that Iacullo understood that the U.S. Attorney’s
Office would “not oppose” his request for a transfer. The record directly belies his current claim,
that he understood the agreement to mean that his transfer was “pre-approved.”
3
We reject Iacullo’s additional argument that the plea agreement bound the entire federal
government not to oppose his transfer request. Cf. San Pedro v. United States, 79 F.3d 1065, 1068
(11th Cir. 1996) (holding that United States Attorney’s Office’s plea agreement which may have
promised non-deportation to an alien did not bind the INS, since “[f]or an agreement to be valid and
binding, the agent must possess actual authority to make the promise”). As we stated in San Pedro,
“Congress did not expressly grant the United States [A]ttorney authority to bind the INS, or any
12
Next, Iacullo asserts the district court violated his Sixth Amendment rights
by holding him accountable, at sentencing, for an amount of cocaine not alleged in
the indictment or agreed to by him in the plea agreement. In Apprendi, the
Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490,
120 S. Ct. at 2362-63. The Court subsequently applied the Apprendi rule in the
context of Washington State’s sentencing guideline scheme, clarifying that “the
‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by
the defendant. In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” Blakely, 542 U.S. at
___, 124 S. Ct. at 2537 (citations omitted) (emphasis in original).
Most recently, in Booker, the Supreme Court found “no distinction of
constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue” in Blakely. 125 S. Ct. at 749. The Court held
other governmental agency.” Id. at 1069. Indeed, Iacullo acknowledged in his plea agreement “that
the United States Attorney’s Office does not have authority to effectuate a prisoner exchange
between the United States and Canada.”
13
that the mandatory nature of the Guidelines rendered them incompatible with the
Sixth Amendment’s right to a jury trial. Id. at 749-52. “This constitutional holding
‘means that it is no longer possible to maintain the judicial factfinding that
Congress thought would underpin the mandatory Guidelines system that it sought
to create.’” United States v. Garcia, --- F.3d ---, 2005 WL 845532, at *12 (11th
Cir. Apr. 13, 2005) (quoting Booker, 125 S. Ct. at 757).
Here, the district court did not commit a Sixth Amendment violation under
Booker when it set Iacullo’s base offense level at 38 based on a finding that Iacullo
was responsible for at least 150 kilograms of cocaine. At numerous points during
the proceedings, Iacullo admitted the facts underlying this amount: (1) he
stipulated in his plea agreement that the quantity of cocaine, for the purposes of the
Guidelines range, was “at least 1,400 kilograms but less than 1,500 kilograms”;
(2) he admitted to the government’s factual proffer at the plea hearing which
detailed Iacullo’s involvement in the importation of approximately 632 kilograms
of cocaine; and (3) he did not object to the facts in the PSI relating to the quantity
of drugs involved in the conspiracy. Simply put, there was no impermissible
judicial fact finding in violation of the Sixth Amendment in the district court’s
drug-quantity attribution for purposes of calculating Iacullo’s offense level.4
4
Iacullo’s argument that the “mutual recommendation” in his plea agreement regarding
drug quantity did not constitute a “formal stipulation” is without merit and does not alter the
14
However, because Iacullo was sentenced under the pre-Booker mandatory
sentencing scheme, there was Booker non-constitutional error based on the
remedial holding of that case. See Rodriguez, 398 F.3d at 1300; see also United
States v. Shelton, 400 F.3d 1325 (11th Cir. 2005) (holding that even without
Booker constitutional error in the district court’s application of the Guidelines,
there could be non-constitutional, or statutory, error where the district court had
applied the Guidelines in a mandatory fashion). We will reverse based on a
Booker non-constitutional error only if the error was not harmless. See Paz, 405
F.3d at 948. A “non-constitutional error is harmless if, viewing the proceedings in
their entirety, a court determines that the error did not affect the sentence, or had
but very slight effect. If one can say with fair assurance that the sentence was not
substantially swayed by the error, the sentence is due to be affirmed even though
there was error.” See United States v. Mathenia, 2005 WL 1201455, *2 (11th Cir.
May 23, 2005) (internal quotations and citation omitted).
Thus, in cases involving preserved Booker non-constitutional error, the
government must show that the mandatory, as opposed to the advisory, application
analysis. Even though a defendant’s plea agreement is not binding on the district court, and
therefore, is only a recommendation to the court, this does not change the fact that Iacullo
admitted in his plea agreement that he was responsible for between 1,400 and 1,500 kilograms of
cocaine. Furthermore, even if the statement regarding drug quantity in the plea agreement was
not deemed an admission, Iacullo also admitted to over 150 kilograms of cocaine by not
objecting to the government’s factual proffer at his plea hearing and by failing to object to the
facts contained in the PSI.
15
of the Guidelines did not contribute to the defendant’s sentence. Paz, 405 F.3d at
948-49 (holding that the government could not meet its burden under harmless
error analysis because the record indicated that had the guidelines been advisory,
defendant’s sentence would have been shorter); see also United States v. Gallegos-
Aguero, --- F.3d ---, 2005 WL1160635, *2 (11th Cir. May 18, 2005)
(“Non-constitutional error is harmless when it does not affect the substantial rights
of the parties” (citing 28 U.S.C. § 2111)). “The non-constitutional harmless error
standard is not easy for the government to meet. It is as difficult for the
government to meet that standard as it is for a defendant to meet the third-prong
prejudice standard for plain error review.” Mathenia, 2005 WL 1201455 at *2.
Based on our careful reading of the record, with particular attention to the
transcript of the sentencing hearing, we can find no indication of whether or not the
district court would have sentenced Iacullo similarly under an advisory scheme.
Cf. Rodriguez, 398 F.3d 1 at 1301 (applying plain error analysis to an
non-preserved Booker error, and stating that because the defendant bore the burden
of persuasion and no one could know what would have happened in an advisory
system, the defendant could not meet his burden). On this record, the government
has not met its burden to show harmlessness, or no effect on substantial rights. Cf.
United States v. Davis, 2005 WL 1033422 at *2 (“We simply do not know what
16
the sentencing court would have done had it understood the guidelines to be
advisory rather than mandatory, and had properly considered the factors in 18
U.S.C. § 3553(a). Therefore, the Government cannot meet its burden of showing
that the mandatory application of the guidelines in violation of Davis’s Sixth
Amendment right was harmless beyond a reasonable doubt.”). Accordingly, the
government has not met its burden to show harmlessness and we must vacate
Iacullo’s sentence and remand for resentencing consistent with Booker.
As for Iacullo’s second sentencing claim, that the district court erred by
imposing a two-level enhancement under U.S.S.G. § 2D1.1(b)(2)(A) for using a
noncommercial aircraft to import a controlled substance. Section 2D1.1(b)
provides the following, inter alia:
If the defendant unlawfully imported or exported a controlled
substance under circumstances in which (A) an aircraft other than a
regularly scheduled commercial air carrier was used to import or
export the controlled substance[,] . . . increase by 2 levels. If the
resulting offense level is less than level 26, increase to level 26.
U.S.S.G. § 2D1.1(b)(2)(A). In United States v. Chastain, 198 F.3d 1338 (11th Cir.
1999), we held the district court erred by imposing a § 2D1.1(b)(2)(A) upward
adjustment based on the defendants’ plan to use a private plane to import narcotics.
In Chastain, no importation actually occurred because the defendants were arrested
before any flight was made to Jamaica to acquire the marijuana for importation
17
into this country. Id. at 1353 (citing United States v. Joelson, 7 F.3d 174, 179-80
(9th Cir. 1993)). We held that “the intent to use a private plane [is] not enough to
warrant the two-level enhancement.” Id.Here, by contrast, based on the undisputed facts of the plea agreement, the
government’s proffer at the plea colloquy, and the PSI, a private plane was used
several times to pick up cocaine in Colombia and fly it to the Bahamas, while the
cocaine was en route to this country. After no less than three of these operations,
Iacullo received fees for his services. Unlike in Chastain, here, it was not disputed
that a private plane was used to move cocaine from Colombia to Mayaguana
Island, where it was then placed on a vessel to smuggle into Florida. On this
record, it is clear that a private plane “was used,” within the meaning of §
2D1.1(b)(2)(A), during the importation scheme, of which Iacullo was an active
participant. Thus, the district court did not err in assessing the two-level
enhancement under § 2D1.1(b)(2)(A).5
Finally, we reject Iacullo’s argument that the district court erred by
assigning three criminal history points for his 1996 conviction, and thereby
5
Moreover, we can find no plain error based on Blakely or Booker in the district court’s
application of the enhancement, based on, inter alia, Iacullo’s inability to satisfy the third prong of
the plain-error test by showing an effect on his substantial rights. See Rodriguez, 398 F.3d at 1299-
1301 (discussing defendant’s burden on third prong, in context of Blakely/Booker claim). Iacullo
has pointed to no place in the record where the district court indicated it would impose a lower
sentence if the Guidelines were not mandatory. Moreover, our own de novo review of the record
has revealed no such indication. Thus, he has not met his burden to show reversible error.
18
increasing his criminal history category. More specifically, Iacullo argues the
enhancement violated the Double Jeopardy Clause and U.S.S.G. § 5G1.3 because
the sentencing judge for the 1996 conviction “considered [his] criminal activity in
the present case as relevant conduct.”
In computing criminal history points, three points are added “for each prior
sentence of imprisonment exceeding one year and one month.” U.S.S.G.
§ 4A1.1(a). A “prior sentence” is defined in the Guidelines as “any sentence
previously imposed upon adjudication of guilt . . . for conduct not part of the
instant offense.” U.S.S.G. § 4A1.2(a)(1). The commentary explains that “[a]
sentence imposed after the defendant’s commencement of the instant offense, but
prior to sentencing on the instant offense, is a prior sentence if it was for conduct
other than conduct that was part of the instant offense.” U.S.S.G. § 4A1.2,
comment. (n.1).
In Witte v. United States, the Supreme Court held that the Double Jeopardy
Clause did not bar a prosecution for conduct that had provided the basis for an
enhancement of the defendant’s sentence in a prior case. 515 U.S. 389, 406, 115 S.
Ct. 2199, 2209, 132 L. Ed. 2d 351 (1995). The Court explained that the “use of
evidence of related criminal conduct to enhance a defendant’s sentence for a
separate crime within the authorized statutory limits does not constitute
19
punishment for that conduct within the meaning of the Double Jeopardy Clause.”
Id. at 399, 115 S. Ct. at 2206. The Court also discussed enhancement statutes, such
as the criminal history provisions of the Sentencing Guidelines, and explained that
there was no double jeopardy violation “because the enhanced punishment
imposed for the later offense is not to be viewed as either a new jeopardy or
additional penalty for the earlier crimes, but instead as a stiffened penalty for the
latest crime, which is considered to be an aggravated offense because a repetitive
one.” Id. at 400, 115 S. Ct. at 2206 (internal quotation marks omitted).
Likewise, in the instant case, the district court properly added three criminal
history points based on Iacullo’s 1996 conviction, which involved a 293-month
sentence and was based on conduct not part of the relevant conduct for the instant
offense. Moreover, the 1996 conviction was a “prior conviction,” even though the
offense conduct occurred after the instant offense conduct, because the sentence
was imposed prior to sentencing for the instant offense. See U.S.S.G. § 4A1.2,
comment. (n.1). Accordingly, the criminal history points were scored correctly
based on the Sentencing Guidelines.
We also reject Iacullo’s secondary argument on this point, that his sentence
was not imposed in accord with U.S.S.G. § 5G1.3. The only applicable subsection
is (c), which provides that if a defendant is currently serving an undischarged term
20
of imprisonment, “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 reasonable punishment for the instant offense.”
U.S.S.G. § 5G1.3(c), p.s. Iacullo’s sentence for the instant offense was imposed to
run concurrently with the sentence from his 1996 conviction, thereby avoiding any
potential duplicative punishment. Accordingly, Iacullo received any Guidelines
protections to which he was entitled.
Because the government has not satisfied its burden to show the Booker
non-constitutional error, resulting from the imposition of sentence under a
mandatory Guidelines system, was harmless, we vacate Iacullo’s sentence and
remand for reconsideration in light of Booker, consistent with the foregoing.6
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
6
We note that in this case, the district court correctly determined the Guidelines range for
Iacullo’s conviction. On remand, pursuant to Booker, the district court is required to sentence
Iacullo under an advisory Guidelines scheme, and, in so doing, must consider the Guidelines range
of 235- 293 months' imprisonment, and other statutory concerns as well, see [18 U.S.C.] § 3553(a)
(Supp.2004). Booker, 125 S.Ct. at 757.
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