United States v. Nicolella , 211 F. App'x 12 ( 2007 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0
United States Court of Appeals
For the First Circuit
No. 05-2329
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH NICOLELLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lipez, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Robert Little on brief for appellant.
Donald C. Lockhart and Gerard B. Sullivan, Assistant U.S.
Attorneys, and Robert Clark Corrente, United States Attorney, on
brief for appellee.
January 12, 2007
Per Curiam. Joseph Nicolella ("Nicolella") appeals from
his 108-month, bottom-of-guidelines sentence on the grounds that
the district court erred in applying the kidnapping guideline and
that the resulting sentence was unreasonably high.1 After careful
consideration of the parties' briefs and the underlying record, we
affirm the sentence for the reasons discussed below.
In return for Nicolella's pleading guilty to two counts
of interstate domestic violence and two counts of interstate
violation of a protection order, the government dismissed a fifth
count of kidnapping arising from the same incident of domestic
violence as the other counts. As Nicolella concedes, despite the
dismissal of the kidnapping count, it was permissible for the
district court to consider the conduct underlying that count in
sentencing. See USSG § 1B1.3 comment. (backg'd); United States v.
Marks, 365 F.3d 101, 107 n.4 (1st Cir. 2004).
Nevertheless, Nicolella argues that the district court
erred in applying the kidnapping guideline in calculating his
advisory guideline range for three reasons. First, he argues that
his conduct did not rise to the level of kidnapping. The
government makes a strong argument that Nicolella waived that
1
He also argues that United States v. Booker, 543 U.S. 220(2005), was wrongly decided but recognizes that this court has no
power to address that claim.
-2-
argument by first raising it and then abandoning it at sentencing.2
See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002)
(finding it difficult to conceive of a more conspicuous example of
a [waiver]" than when "[a] party . . . identifies an issue, and
then explicitly withdraws it"). Moreover, as the district court
recognized, the absence of aggravating factors, such as a ransom
demand, sexual assault, or use of a dangerous weapon, does not mean
that the conduct did not constitute a kidnapping but only that no
enhancement based on such factors was warranted. See USSG §
2A4.1(b)(1)-(5).
Nicolella's second argument is that the district court
erred in applying the kidnapping guideline, USSG § 2A4.1, rather
than the stalking or domestic violence guideline, USSG § 2A6.2.
While Nicolella is correct in starting with the stalking or
domestic violence guideline, which applies to his offenses of
conviction under USSG App. A, his argument ignores or misreads the
cross-reference contained in that very guideline.
That cross-reference, which the district court applied,
provides that "[i]f the offense involved the commission of another
criminal offense, [the court should] apply the offense guideline .
. . most applicable to that other criminal offense, if the
resulting offense level is greater than that determined [by
2
By the end of the sentencing hearing, defense counsel had
conceded that "the elements of kidnapping are there" and no longer
disputed "[t]he fact that the kidnapping was present."
-3-
application of the base offense level and specific offense
characteristics for stalking or domestic violence]." USSG §
2A6.2(c)(1) (emphasis added). Here, as discussed above, there is
no question that the offenses of conviction involved the commission
of kidnapping, that the guideline most applicable to the offense of
kidnapping is section 2A4.1, and that the resulting offense level
under the kidnapping guideline is greater than that determined
under the stalking or domestic violence guideline.3 Accordingly,
the district court correctly applied the kidnapping guideline in
determining Nicolella's offense level.
Nicollela's third argument, raised for the first time on
appeal, is that, because use of the kidnapping cross-reference
dramatically increased his sentence, the district court was
required to find the underlying facts by clear and convincing
evidence. The short answer to that argument is that even if a
higher standard of proof were constitutionally required in these
circumstances--a question that we need not decide here4--
3
Under the kidnapping guideline, Nicolella's offense level was
32, USSG § 2A4.1(a), while under the domestic violence guideline,
even with a four-level increase for aggravating factors, his
offense level would have been only 22, USSG § 2A6.2(a),(b).
4
Before Booker, we rejected that argument, United States v.
Lombard, 102 F.3d 1, 4-5 (1st Cir. 1996), and have not had occasion
to revisit it since then. Other circuits that have considered this
argument post-Booker have reached varying conclusions. See United
States v. Reuter, 463 F.3d 792, 792-93 (7th Cir. 2006) (collecting
cases). Under those circumstances, any error in applying the
preponderance of the evidence standard would not be sufficiently
"plain" to warrant relief based on this unpreserved claim. See
-4-
Nicolella's admission of the underlying facts and his concession
that the elements of kidnapping were met renders the standard of
proof irrelevant.
As a fallback argument, Nicolella argues that his
resulting 108-month sentence was unreasonably high under the
standards we articulated in United States v. Jiménez-Beltre, 440
F.3d 514, 517 (1st Cir. 2006) (en banc). Specifically, he argues
only that, in declining to impose a lesser sentence, the district
court "outweighed the severity of his crime." That argument is
meritless. The district court's characterization of the crime as
"very, very serious" is amply supported by the record--including
gruesome photographs and graphic grand-jury testimony of the
victim--indicating that Nicolella repeatedly struck her in the face
and threatened to kill her if she attempted to escape. On appeal,
Nicolella points to no countervailing factors. And, in any event,
the amount of weight given to the relevant factors is for the
district court, not an appellate court, to determine. United
States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).
Affirmed. See 1st Cir. Loc. R. 27.0(c).
United States v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002).
-5-