United States v. Armand A. Deangelis ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 15 2007
No. 05-16818 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20261-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMAND A. DEANGELIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 15, 2007)
Before BARKETT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Armand DeAngelis appeals his combined sentence of 97 months’
incarceration and restitution in the amount of $1,296,701.50, imposed after he pled
guilty to one count of mail fraud and one count of conspiracy to commit mail
fraud. DeAngelis’s fraud consisted of misrepresenting to investors the quality of
the rare gold coins that he convinced them to purchase at inflated prices from him
through three corporations which he and his wife controlled.
On appeal, DeAngelis argues that the district court: (1) erred by imposing a
two-level enhancement for his leadership role in the offense, (2) erred by granting
the government’s motion for a downward departure without reducing his sentence
below the Guideline range, (3) violated his constitutional rights to due process and
to confront witnesses by not allowing him to cross-examine victims giving impact
testimony, (4) erred by granting him an upward departure for creating a substantial
risk of non-monetary harm, and (5) had no jurisdiction to impose an order of
restitution.
In its response brief, the government argues that the plea agreement in this
case contained a sentencing appeal waiver that precludes DeAngelis from
challenging any issue other than the upward departure. Because each of his claims
can be denied on their merits, we need not consider the scope of the appeal waiver
in the plea agreement.
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I. Standards of Review
We review the district court’s factual findings regarding a defendant’s role
in the offense for clear error. United States v. Gupta, 463 F.3d 1182, 1197 (11th
Cir. 2006), petition for cert. filed, (U.S. Apr. 16, 2007) (No. 06-1388). Generally,
we do not review the extent of a downward departure for substantial assistance,
however, we will review de novo a challenge to a ruling on a substantial assistance
motion on the ground that the court misapplied U.S.S.G. § 5K1.1. United States v.
Luiz, 102 F.3d 466, 468 (11th Cir. 1996). We review the scope of a defendant’s
constitutional rights de novo when the issue is preserved in the district court.
United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005), cert. denied,
126 S.Ct. 1604 (2006). We review the district court’s application of the Guidelines
to the facts de novo and the court’s factual findings for clear error. United States v.
Simmons, 368 F.3d 1335, 1338 (11th Cir. 2004). An objection to a restitution
order raised for the first time on appeal is reviewed for plain error. Cani v. United
States, 331 F.3d 1210, 1212 (11th Cir. 2003).
II. Role Enhancement
DeAngelis argues that because he was the only participant, the district court
clearly erred by imposing a two-level enhancement for a leadership role in the
offense. He contends that he cannot receive a leadership enhancement because the
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only other participants in the scheme were alter-ego corporations over which he
held exclusive control.
The Sentencing Guidelines provide for an offense level enhancement of two
levels if the defendant was an organizer, leader, manager, or supervisor of one or
more other participants in any criminal activity. U.S.S.G. § 3B1.1(c) and
comment. (n.2). A participant “is a person who is criminally responsible for the
commission of the offense, but need not have been convicted,” however, “[a]
person who is not criminally responsible for the commission of the offense . . . is
not a participant.” U.S.S.G. § 3B1.1, comment. (n.1).
Upon review of the record, there is no reversible error in the finding that
DeAngelis served a leadership role in the offense. DeAngelis’s version of the facts
does not comport with the facts before the court. See United States v. Smith, 480
F.3d 1277, 1281 (11th Cir. 2007) (holding that where a defendant does not object
to facts contained in the government’s proffer during a plea colloquy or statements
in a presentence investigation report (“PSI”), those facts are deemed to have been
admissions of fact by the defendant). DeAngelis pled guilty to conspiring with
three corporations, one of which, according to the final version of the PSI, was
headed by his wife. Additionally, during the plea colloquy, the government
explained that it would prove that DeAngelis instructed an individual on how he
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wanted the coins fraudulently graded. These uncontested statements implicating
others as un-charged, but criminally responsible participants in the offense,
provided a sufficient basis for the district court to apply an enhancement for
DeAngelis’s leadership role in the offense.
III. Downward Departure
DeAngelis argues that even though the district court “purportedly” granted
the government’s motion for a downward departure, the district court erroneously
failed to give DeAngelis proper credit for his assistance to the government because
the sentence imposed was in excess of the Guideline range.
The Sentencing Guidelines provide that “[u]pon motion of the government
stating that the defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the district court may
depart from the guidelines.” U.S.S.G. § 5K1.1. To arrive at the appropriate
reduction, the court may consider, amongst other factors related to the defendant’s
substantial assistance, “the significance and usefulness of the defendant’s
assistance,” “the truthfulness, completeness, and reliability of any information or
testimony provided by the defendant,” “the nature and extent of the defendant’s
assistance,” “any injury suffered, or any danger or risk of injury to the defendant or
his family resulting from his assistance,” and “the timeliness of the defendant’s
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assistance.” Luiz, 102 F.3d at 469; U.S.S.G. § 5K1.1(a)(1-5).
DeAngelis does not contest that the court misapplied the guideline provision
by considering factors unrelated to his substantial assistance. Instead he argues
that the court’s decision to grant the government’s motion for a downward
departure was ineffective because it did not result in a sentence below the
Guideline range. We may not consider such an argument regarding the extent of
the downward departure.
IV. Confrontation Clause and Due Process
DeAngelis argues that the district court violated his rights under the
Confrontation Clause of the Sixth Amendment and the Due Process Clause of the
Fifth Amendment when it considered unsworn statements made by alleged victims
without allowing him the opportunity to cross-examine.
The Sixth Amendment protects the right of the accused “to be confronted
with the witnesses against him” “[i]n all criminal prosecutions.” U.S. Const.
amend. VI. The right to confront witnesses, however, does not extend to all
aspects of criminal law and we have held that “[t]he right to confrontation is not a
sentencing right.” Cantellano, 430 F.3d at 1146. In Cantellano, we approved the
district court’s use of hearsay and documentary evidence at a sentencing hearing to
prove a defendant’s prior convictions. Id.6
DeAngelis does not offer any compelling reason why victim impact
testimony should be exempted from the general rule that the defendant has no right
to confront witnesses at sentencing. In fact, he acknowledges that he has no such
right. Thus, there is no merit to DeAngelis’s argument that the district court
violated the Confrontation Clause by not permitting him to cross-examine the
victims of his crimes at sentencing. To the extent that DeAngelis argues that he
was denied due process because the victim impact statements were unreliable
without cross-examination, that argument is connected to his lack of confrontation
argument and is equally without merit.
DeAngelis’s due process rights are guaranteed by the Fifth Amendment,
which provides that “[n]o person shall . . . be deprived of life, liberty, or property
without due process of law.” U.S. Const. amend. V. During a sentencing
proceeding, due process allows a court to consider any information, even if it
would not be admissible under the evidentiary rules, “provided that the evidence
has sufficient indicia of reliability, the court makes explicit findings of fact as to
credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005), cert. denied, 126 S.Ct. 1809(2006).
DeAngelis does not challenge the underlying basis for the court’s
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determination that the statements were sufficiently reliable. To the extent that he
argues that the court did not make a reliability determination at all, that allegation
does not appear to have a basis in the record. The record contains letters from
many of the victims and the court heard victim impact testimonials during two
presentence hearings. The record also contains memorandums and documents
DeAngelis filed in response to the victims’ statements. The court expressed that it
found the victims’ statements reliable and noted that DeAngelis responded to the
statements. The district court explained that it found the victims credible because
the victims provided a common description of DeAngelis’ modus operandi, and the
statements were consistent with documents submitted by DeAngelis, the civil
pleadings in a related case, and the conduct admitted by DeAngelis in the plea
colloquy. Thus, the court did not infringe upon his right to due process because
DeAngelis had a chance to respond to the statements, the court found “sufficient
indicia of reliability,” and made explicit findings regarding credibility.
V. Upward Departure
DeAngelis argues that it was inappropriate for the district court to depart
upward from the Guideline range, based on a finding that his conduct “caused or
risked substantial non-monetary harm,” such as “psychological harm or severe
emotional trauma,” absent evidence that the victims needed psychological
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treatment or suffered from anguish that exceeded the “embarrassment and distrust
[that] was no different than that experienced by any other heartland fraud victims.”
We have held that “[t]he Supreme Court and this Court have long
recognized that it is not necessary to decide guidelines issues or remand cases for
new sentence proceedings where the guidelines error, if any, did not affect the
sentence.” United States v. Williams, 431 F.3d 767, 775 (11th Cir. 2005). In a
situation where the district court would have imposed the same sentence, any
potential error does not affect the sentence. United States v. Kendrick, 22 F.3d
1066, 1068 (11th Cir. 1994). We find that to be the case here.
The district court granted DeAngelis an upward departure premised upon
findings that: (1) his “conduct was unusually heinous, cruel, brutal or degrading to
the victim,” pursuant to U.S.S.G. § 5K2.8, and (2) the offense level “substantially
understates the seriousness of the offense,” because his conduct “caused or risked
substantial non-monetary harm,” such as “psychological harm, or severe emotional
trauma,” “created a risk of substantial loss” beyond that calculated as the amount
of loss, and “endangered the solvency or financial security of one or more
victims,” pursuant to U.S.S.G. § 2B1.1 comment. (n.15(A)(ii, iv, v). The court
based its decision “on each of these factors individually and in combination.” On
appeal, DeAngelis argues that the court erred in regard to finding psychological
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harm or emotional trauma, but he does not contest the court’s findings regarding
any of the other grounds for an upward departure. He thereby abandons any
arguments regarding the other grounds for the upward departure. See United
States v. Bordon, 421 F.3d 1202, 1206 n.1 (11th Cir. 2005) (noting that issues not
raised in the briefs are abandoned). Thus, even if the court improperly determined
that DeAngelis “caused or risked . . . psychological harm, or severe emotional
trauma,” which we do not determine, we still affirm the upward departure because
the district court made clear that the other factors on which it based the upward
departure were present in such a degree to independently support a departure.
VI. Restitution
DeAngelis argues that the restitution order imposed upon him by the district
court is invalid because it was issued in violation of the limitation period of 90
days in 18 U.S.C. § 3664. The chronology is undisputed – the court orally
pronounced a sentence for DeAngelis on November 18, 2005, held a hearing
during which an oral restitution order was made on January 18, 2006, and entered a
final judgment on March 16. Thus, the 90-day limitation period ended between the
date that the court orally stated the amount of restitution due and the date that it
entered a final judgment memorializing that same amount.
Under the plain error standard of review, we may exercise discretion to
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correct an error that is plain and affects substantial rights, if the error “serious
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. King, 414 F.3d 1329, 1330 (11th Cir. 2005).
In instances in which “the victim’s losses are not ascertainable” prior to
sentencing, upon notice from either the prosecuting attorney or the probation
office, “the court shall set a date for the final determination of victim’s losses, not
to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5). “‘Sentencing’ means
the oral announcement of the sentence.” Fed.R.Crim.P. 35(c). We have held that a
judgment of conviction becomes final by operation of law after 90 days and any
order of restitution imposed after that date is unenforceable. United States v.
Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002).
We need not decide whether the limitation period concludes when the court
orally announces a restitution order, or if it does not end until a restitution order is
entered on the docket because, in any event, DeAngelis is unable to prove that his
substantial rights were affected.
Courts are required to impose restitution on defendants convicted of “any
offense in which an identifiable victim or victims has suffered a . . . pecuniary
loss.” 18 U.S.C. § 3663A(a)(1) and (c)(1)(B). In compliance with that statutory
mandate, the district court orally set the terms of restitution at a hearing before the
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limitation period elapsed. Thus, DeAngelis’s substantial rights were not affected
by the court’s subsequent delay in entering on the docket a final judgment with the
same restitution amount.
For the reasons stated herein, DeAngelis’s combined sentence is,
AFFIRMED.
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