United States v. Frank Fato ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4362
FRANK R. FATO, SR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4363
FRANK R. FATO, SR.,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CR-90-160, CR-92-75)
Submitted: February 15, 2000
Decided: March 17, 2000
Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Peter Goldberger, Pamela A. Wilk, Ardmore, Pennsylvania, for
Appellant. Melvin W. Kahle, Jr., United States Attorney, Rita R. Val-
drini, Assistant United States Attorney, Lisa Grimes Johnston, Assis-
tant United States Attorney, Wheeling, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
In these consolidated appeals, Frank R. Fato, Sr. appeals his sen-
tence imposed following revocation of his supervised release and pro-
bation. He contends that (1) the district court that originally sentenced
him to three terms of supervised release lacked jurisdiction to do so
and (2) the district court in this case erred in imposing a seven-year
sentence. We conclude that the first claim is not properly before us
in this appeal and that the second claim is meritless. We therefore
affirm.
I.
In 1991, Fato was convicted of causing a person to cross state lines
to commit arson and two related offenses. He absconded before sen-
tencing, and the district court imposed sentence in his absence. The
sentence included three concurrent terms of incarceration, three con-
current terms of supervised release, a fine, restitution, and three spe-
cial cost assessments.
Because of his flight before sentencing, Fato was charged with fail-
ure to appear. He pled guilty to this charge and was sentenced to a
term of probation to be served along with his three terms of super-
vised release.
Following his release from prison, Fato not only failed to pay the
restitution and penalties imposed by the court but actively manipu-
lated his assets to avoid making the required payments. The district
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court therefore revoked his probation and his supervised release
terms. The court then afforded Fato an additional six months to
arrange for payment of his arrearages. After Fato and his attorneys
made virtually no progress toward satisfaction of Fato's obligations,
the court ordered Fato to serve a total of seven years' incarceration
(consecutive two-year terms for each of the three arson-related con-
victions and a consecutive one-year term for the failure to appear con-
viction). This appeal followed.
II.
Fato initially contends that his current sentence is invalid because
he was not present when the court imposed his sentence in 1992. To
the extent that this claim challenges the district court's jurisdiction,
we hold that the court had jurisdiction to sentence Fato in his absence,
even though the version of Fed. R. Crim. P. 43 then in effect did not
expressly authorize sentencing in absentia. See United States v.
Rogers, 853 F.2d 249, 252 (4th Cir. 1988) (noting that violations of
Rule 43 may be harmless error); cf. Hill v. United States, 368 U.S.
424, 428 (1962) (stating that denial of opportunity for allocution, in
violation of Fed. R. Crim. P. 32, was not jurisdictional error). To the
extent that this claim alleges non-jurisdictional error in the imposition
of the arson sentence, we decline to consider it in this appeal from
revocation of Fato's supervised release. See United States v. Johnson,
138 F.3d 115, 117-18 (4th Cir. 1998).
Fato's second claim is that, even if his original sentence was law-
ful, his sentence in this case was not. He advances three reasons to
support this claim. First, he argues that under 18 U.S.C.A.
§ 3583(e)(3) (West Supp. 1999),* his total sentence upon revocation
of supervised release could not exceed two years. The plain language
of the statute, however, links this two-year maximum to each term of
supervised release, not to each revocation proceeding. Therefore, we
find this claim meritless.
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*Although § 3583(e)(3) has been significantly revised since Fato was
originally sentenced to serve terms of supervised release, the changes are
not relevant to this claim.
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Fato's second argument--that the district court failed to state its
reasons for imposing a seven-year sentence rather than a shorter term
--was not raised below and does not constitute plain error. See United
States v. Karam, ___ F.3d ___, 2000 WL 6224, at *5 (4th Cir. Jan. 6,
2000) (No. 98-4271) (discussing plain error); see also Johnson, 138
F.3d at 119 ("Congress never intended . . . for sentencing to become
a hyper-technical exercise devoid of common sense.").
Finally, Fato contends that the district court abused its discretion
in imposing the seven-year sentence. We disagree. Fato demonstrated
chronic unwillingness to accept responsibility for his criminal acts. Of
particular relevance is his elaborate manipulation of his assets to frus-
trate the Government's efforts to collect restitution and other mone-
tary penalties. This conduct prevented the Government from making
the victims whole, and we conclude the district court did not abuse
its discretion in exercising its option to incarcerate him.
For these reasons, we affirm the revocation of Fato's supervised
release and probation and the accompanying sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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