United States v. Falciglia , 421 F. App'x 146 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-17-2008
USA v. Falciglia
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1631
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1631
UNITED STATES OF AMERICA
v.
WAYNE STEPHEN FALCIGLIA,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 05-cr-00032E)
District Judge: Honorable Sean J. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
June 5, 2008
Before: AMBRO, CHAGARES and COWEN, Circuit Judges
(Opinion filed: June 17, 2008)
OPINION
AMBRO, Circuit Judge
Wayne Stephen Falciglia appeals his conviction for stealing firearms from a
licensed firearms dealer, a violation of 18 U.S.C. §§ 922(u) and 924(i)(1), resulting in a
102-month prison sentence. He raises three issues on appeal: (1) he did not knowingly
and voluntarily waive his Miranda rights before making incriminating statements; (2) the
District Court denied him his constitutional right to a defense; and (3) the Court
misinterpreted the federal Sentencing Guidelines in declining to grant a downward
departure in the calculation of the sentencing range considered in the actual sentence. We
affirm.
I. Jurisdiction and Standard of Review
We have jurisdiction over the District Court’s final judgment pursuant to 28
U.S.C. § 1291. Any factual findings are binding on us unless they are clearly erroneous.
United States v. Jacobs, 431 F.3d 99, 104 (3d Cir. 2005). We have plenary review over
conclusions of law, such as the Miranda issue or interpretations of the federal Sentencing
Guidelines. See id. (Miranda issue); United States v. Wise, 515 F.3d 207, 217 (3d Cir.
2008) (sentencing issue). We review any claims that were not preserved in the District
Court for plain error. United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007), cert.
denied, 128 S. Ct. 929 (2008).
II. Merits
A. Voluntariness of the Miranda Waiver
Falciglia first claims that a state police officer and federal law enforcement agents
misled him into giving incriminating statements when questioning him about the stolen
guns. By his account, the agents suggested he would receive a more lenient sentence in
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exchange for incriminating his accomplices. He argues that the officers told him that his
cooperation would be “helpful,” which he interpreted as meaning that any statements he
made would not be used against him but rather would be used against his coconspirators.
Our sister courts of appeals are uniform in holding that an officer may indicate that the
defendant’s statements could bring about leniency without violating Miranda. See,
e.g., United States v. Gaines, 295 F.3d 293, 299 (2d Cir. 2002) (“[T]here is no
inconsistency between the required warning that the defendant’s statement may be used
against him and a further statement that cooperation can help him. Both are true.”). But
see id. (noting “that unfulfillable promises or certain other misrepresentations made to a
suspect might render a confession involuntary because they overcome his desire to remain
silent.”). Thus, even if the agents had made promises, those promises did not render the
waiver involuntary.
Considering the totality of the circumstances, Miller v. Fenton, 796 F.2d 598, 608
(3d Cir. 1986), we hold that Falciglia’s waiver of his Miranda rights was knowing and
voluntary. He was not under pressure during the brief interrogation in which he made
incriminating statements. Moreover, he had substantial experience within the criminal
justice system. We also agree with the District Court that nothing in a recorded phone
conversation between Faciglia and his wife (which he both seeks to suppress and to rely
upon, depending on the issue) supports his claim that his waiver was involuntary.
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B. Denial of the Right to a Defense
Falciglia argues that the District Court denied him his Fifth Amendment right to a
defense by ruling that the prosecution could introduce an incriminating telephone
conversation between him and his wife as impeachment evidence. The District Court
ruled that this evidence could only be used in the event that Falciglia testified. He did not
testify. The Supreme Court has previously held that, where the District Court rules that
the prosecution can impeach a testifying defendant with evidence of a prior conviction
and the defendant does not thereafter testify, he has waived the right to challenge on
appeal the District Court’s ruling on impeachment. See Luce v. United States, 469 U.S.
38, 42 (1984) (“Because an accused’s decision whether to testify seldom turns on the
resolution of one factor, a reviewing court cannot assume that the adverse ruling
motivated a defendant’s decision not to testify.” (internal quotation marks and citations
omitted)). We have no way of knowing why Falciglia chose not to testify and whether the
prosecution would have used the impeachment evidence had he testified. In this context,
the waiver rule of Luce applies.
C. Sentencing
Finally, Falciglia claims that the District Court erred by not granting a downward
departure. He asserts that he should have received credit for a sentence already
discharged—under U.S.S.G. § 5G1.3, Application Note 4, or § 5K2.23—because his
previously served sentence was imposed for conduct that was relevant to the charge in
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this case.1 Specifically, he argues that his possession of the stolen guns in New York
state, for which he served a 60-month sentence, was relevant conduct under U.S.S.G.
§ 1B1.3(a)(1)(A) to the firearm robbery in Pennsylvania because one of the same guns
was involved in both crimes. On this basis, he seeks a 60-month downward departure.
The District Court properly denied the motion for a downward departure.
Possessing the guns in New York was not “the basis for an increase in the offense level in
[the] offense [before it],” which is a requirement for a downward departure based on
relevant conduct. U.S.S.G. § 5G1.3(b). As the District Court pointed out, Falciglia was
convicted of stealing 26 guns; he only claims that one of them was involved in the New
York offense. Moreover, U.S.S.G. § 5G1.3, Application Note 4, and § 5K2.23 provide
the option of a downward departure—they do not mandate it.
* * * * *
We thus affirm the judgment of the District Court.
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After denying the motion for downward departure, the District Court then granted a
downward variance of 18 months from the statutory maximum sentence of 120 months.
The Government has not appealed the variance.
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