United States v. Rossi ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20786
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT C. ROSSI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-40-1
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April 19, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert C. Rossi (Rossi) appeals his guilty-plea conviction
for wire fraud under 18 U.S.C. §§ 1343 and 1346. Rossi argues
that the Government breached the plea agreement by introducing
evidence not included in the parties' stipulation of facts to
support its argument for certain sentencing enhancements; that
the district court's acceptance of the Government's proffer that
a witness could testify in support of an enhancement under
U.S.S.G. § 3B1.3 violated his due process rights; that the
district court violated Fed. R. Crim. P. 32; that he can appeal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 00-20786
-2-
these "sentencing procedural errors" because these "errors" are
not within the scope of his waiver of appeal; and that this case
should be remanded for the sole purpose of reconsidering the
sentencing enhancements imposed under U.S.S.G. §§ 3B1.1(c) and
3B1.3.
The record reflects the parties’ understanding that
enhancements under U.S.S.G. §§ 3B1.1(c) and 3B1.3 were subject to
dispute at sentencing. The record also reflects that the
Government reserved its right to fully describe Rossi’s conduct
to the court, that the court was not bound by the stipulations of
fact and indeed was obligated to consider any other relevant
evidence, see U.S.S.G. § 6B.1.4 comment (Nov. 1994), and that the
Government did not promise or agree that it was limited to the
stipulated facts in arguing for the enhancements. Accordingly,
any expectation to the contrary was unreasonable. See United
States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993).
Rossi waived his right to appeal his sentence on the grounds
set forth in 18 U.S.C. § 3742 subject to certain exceptions not
at issue in this appeal. Rossi's remaining arguments, that the
acceptance of the Government's proffer of witness testimony
violated his due process rights and that the district court
violated Fed. R. Crim. P. 32, are within the scope of this
waiver. Rossi's argument that his appeal may be considered
solely under 28 U.S.C. § 1291 and without reference to 18 U.S.C.
§ 3742 is without merit. See United States v. Melancon, 972 F.2d
566, 573 (5th Cir. 1992).
AFFIRMED.