United States v. Giuseppe Pileggi , 703 F.3d 675 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 10-5273
GIUSEPPE PILEGGI,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:06-cr-00151-RJC-1)
Argued: December 7, 2012
Decided: January 2, 2013
Before TRAXLER, Chief Judge, and GREGORY and
DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Davis wrote the opinion, in which Judge
Gregory joined. Chief Judge Traxler wrote an opinion concur-
ring in the result.
2 UNITED STATES v. PILEGGI
COUNSEL
ARGUED: Rudolph Alexander Ashton, III, MCCOTTER,
ASHTON & SMITH, PA, New Bern, North Carolina, for
Appellant. Daniel Steven Goodman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appel-
lee. ON BRIEF: Lanny A. Breuer, Assistant Attorney Gen-
eral, John D. Buretta, Acting Deputy Assistant Attorney
General, Ellen R. Meltzer, Patrick M. Donley, Fraud Section,
Criminal Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
OPINION
DAVIS, Circuit Judge:
Giuseppe Pileggi appeals the restitution order that the dis-
trict court entered after we remanded his case for resentenc-
ing. We previously held that the district court erred when it
sentenced Pileggi to 600 months (50 years) of imprisonment.
Specifically, we held that the court relied on an erroneous
view of the facts concerning the diplomatic assurances given
to Costa Rica when Pileggi was extradited to the United
States to face charges arising from his participation in a fraud-
ulent sweepstakes scheme. United States v. Pileggi, 361 F.
App’x 475, 477–79 (4th Cir. 2010). In this second appeal,
Pileggi contends that the district court lacked authority to
reconsider the amount of restitution on remand. We agree. We
therefore vacate the restitution order and remand with instruc-
tions to the district court to reinstate the previous restitution
order directing Pileggi to make restitution in the amount of
$4,274,078.40.1
1
Pileggi also contends that the district court abused its discretion in
refusing his request for a new presentence report ("PSR") before his resen-
tencing. We conclude that the court did not abuse its discretion. See
United States v. Sexton, 512 F.3d 326, 333 (6th Cir. 2008) ("it is unneces-
sary to prepare new PSRs on remand where the parties receive an opportu-
nity to be heard and no new information exists that would warrant an
update").
UNITED STATES v. PILEGGI 3
I.
A.
From April 2003 until May 2006, Pileggi, a Canadian citi-
zen, and more than four dozen co-conspirators ran an elabo-
rate fraudulent sweepstakes scheme out of Costa Rica that
primarily targeted elderly United States citizens. Costa Rican
authorities extradited Pileggi after the United States agreed
that Pileggi "[would] not receive a penalty of death or one that
requires that he spend the rest of his natural life in prison."
Pileggi, 361 F. App’x at 476. Pileggi was tried in the Western
District of North Carolina and convicted of the following
offenses: one count of conspiracy to commit wire fraud, mail
fraud, and travel fraud, in violation of 18 U.S.C. § 371, and
22 counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and
2.
At sentencing, the prosecutor stated that the United States
had promised Costa Rica it would "not seek a sentence in
excess of 50 years." Pileggi, 361 F. App’x at 476. The court
sentenced Pileggi, then 48, to 600 months (50 years) in
prison, followed by three years of supervised release. The
court also ordered Pileggi to pay restitution of $3,952,9852
and to forfeit $8,381,962 to the United States.
Pileggi appealed the 600-month prison term, arguing that
the district court had relied on "clearly erroneous facts to
arrive at the sentence, namely the [g]overnment’s misrepre-
sentation concerning the diplomatic assurances given to Costa
Rica to secure [his] extradition." Pileggi, 361 F. App’x at
477–78. Pileggi did not appeal the restitution order, and the
government did not file a cross-appeal.
2
On December 29, 2008, the court increased the restitution amount to
$4,274,078.40.
4 UNITED STATES v. PILEGGI
We held that the district court had committed a significant
procedural error by imposing "a de facto life sentence" in reli-
ance on "clearly erroneous facts": the government’s "indispu-
tably false information" about its agreement with Costa Rica.
Pileggi, 361 F. App’x at 477–79. Thus, we vacated "Pileggi’s
600-month sentence and remand[ed] with instructions that the
case be reassigned for resentencing." Id. at 479. Our mandate
stated that "the judgment of the District Court [was] vacated,"
and remanded the case only for "further proceedings consis-
tent with [our] decision."3
B.
At Pileggi’s resentencing in September 2010, the district
court imposed a sentence of 300 months (25 years) and
ordered Pileggi to pay restitution of $4,274,078.40.
The government then asked to address the amount of resti-
tution, noting that, in another case involving the same fraudu-
lent sweepstakes operation in Costa Rica, this Court had
found that "losses for restitution purposes had to be attributed
to the individual rooms," or call centers, where each defen-
dant had worked. J.A. 186. (citing United States v. Llamas,
599 F.3d 381 (4th Cir. 2010)). The government argued that
the $4.2 million figure in Pileggi’s case was "tainted" because
the trial judge had chosen to "group [the rooms] all together";
although the government "[did]n’t mind the $4.2 million fig-
ure," it argued that Pileggi would likely contend on appeal
that he had been wrongly held responsible for losses from
other rooms. Id. at 187–88. The government thus asked the
court to use the forfeiture amount—about $8.3 million—as
the restitution figure, even though the government had "gone
back" and done "another analysis which show[ed] that the
loss is even higher." Id. at 187–89.
3
See Judgment, Docket No. 81-1 (vacating the district court judgment
and remanding for further proceedings) and Mandate, Docket No. 83 (giv-
ing effect to the Court’s judgment).
UNITED STATES v. PILEGGI 5
The district court decided to limit restitution to the $4.2
million figure, but agreed to "hold that restitution component
open" and allow the government to "file its amended figures"
within 30 days. Id. at 190.
At a second hearing focused solely on restitution, the gov-
ernment argued that the $8.3 million forfeiture figure had
resulted from a "two-generation" analysis of wire transfer
records that had been done "as speedily as possible." J.A. 202.
Upon remand, the government had applied a "five-generation
analysis" to the same records, which had "increased the resti-
tution amount from [$]8.3 [million] to about some [$]20 mil-
lion." Id. The government asserted that "[t]his analysis was
done specifically in response to Llamas." Id. at 252.
The district court rejected Pileggi’s argument that it lacked
authority to reconsider the restitution amount, reasoning that
"the issue . . . was ripe for adjudication in light of the Llamas
case." J.A. 200, 205, 256. After hearing the testimony of the
government’s analyst, id. at 205–48, the court increased the
restitution amount to $20,726,005.18, id. at 256.
II.
A.
Pileggi argues that the district court lacked authority to
change the restitution amount, because our mandate remanded
the case only to correct "the prison sentence [that] was in vio-
lation of the extradition agreement"; "the restitution amount
was not addressed on [his] direct appeal," and the government
did not "file a cross-appeal claiming that the restitution
amount was too low." Opening Br. 16.
"We review de novo the district court’s interpretation of the
mandate." United States v. Susi, 674 F.3d 278, 283 (4th Cir.
2012).
6 UNITED STATES v. PILEGGI
"Few legal precepts are as firmly established as the doctrine
that the mandate of a higher court is controlling as to matters
within its compass." United States v. Bell, 5 F.3d 64, 66 (4th
Cir. 1993) (internal quotation marks omitted). "Because this
mandate rule is merely a specific application of the law of the
case doctrine, in the absence of exceptional circumstances, it
compels compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or
impliedly decided by the appellate court." Id., quoted in Susi,
674 F.3d at 283.
"[T]o the extent that the mandate of the appellate court
instructs or permits reconsideration of sentencing issues on
remand, the district court may consider the issue de novo,
entertaining any relevant evidence on that issue that it could
have heard at the first hearing." Bell, 5 F.3d at 67 (internal
quotation marks omitted), quoted in Susi, 674 F.3d at 283.
But the mandate rule "forecloses litigation of issues . . . fore-
gone on appeal or otherwise waived, for example because
they were not raised in the district court."4
[W]hen this court remands for further proceedings,
a district court must, except in rare circumstances,
implement both the letter and spirit of the . . . man-
date, taking into account [our] opinion and the cir-
cumstances it embraces.
4
Bell, 5 F.3d at 67 (emphasis added), quoted in Susi, 674 F.3d at 283.
Accord Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) ("any issue that
could have been but was not raised on appeal is waived and thus not
remanded"); S. Atl. Ltd. P’ship of Tenn., LP v. Riese, 356 F.3d 576, 584
(4th Cir. 2004) ("[u]nder the mandate rule, a district court cannot recon-
sider issues the parties failed to raise on appeal"); United States v. Barnes,
660 F.3d 1000, 1006 (7th Cir. 2011) (noting that, when an appellate court
"remands to correct a discrete, particular error that can be corrected . . . .
without . . . a redetermination of other issues, the district court is limited
to correcting that error"; "any issue that could have been raised on appeal
but was not is waived and, therefore, not remanded").
UNITED STATES v. PILEGGI 7
Id. Accord S. Atl. Ltd. P’ship of Tenn., LP v. Riese, 356 F.3d
576, 584 (4th Cir. 2004) ("the court must attempt to imple-
ment the spirit of the mandate").
We unhesitatingly conclude that the mandate rule barred
the district court from reconsidering the restitution order on
remand. Neither party had raised the issue before this Court,
and the government is not permitted to "use the accident of a
remand to raise . . . an issue that [it] could just as well have
raised in the first appeal."5 Although we "remand[ed] with
instructions that the case be reassigned for resentencing," we
vacated only "Pileggi’s 600-month sentence." Pileggi, 361 F.
App’x at 479. Thus, the opinion limited the district court to
correcting only the incarceration term of Pileggi’s sentence.
See Bell, 5 F.3d at 67.
The Supreme Court’s recent decision in Pepper v. United
States, 131 S. Ct. 1229 (2011), does not counsel otherwise. In
Pepper, the Supreme Court rejected the contention that the
"law of the case" required a new judge, on remand, to adhere
to the prior sentencing judge’s downward departure from the
advisory guidelines sentence. Pepper, 131 S. Ct. at 1251. The
Pepper Court reasoned that "an appellate court when revers-
ing one part of a defendant’s sentence may vacate the entire
sentence . . . so that, on remand, the trial court can reconfigure
the sentencing plan . . . to satisfy the sentencing factors in 18
U.S.C. § 3553(a)." Id. at 1251 (internal quotation marks omit-
ted). Because the appellate court had "set aside [the defen-
dant’s] entire sentence and remanded for a de novo
resentencing," the remand order had "effectively wiped the
slate clean." Id. (emphasis added).
5
United States v. Parker, 101 F.3d 527, 528 (7th Cir. 1996) (dismissing
the defendant’s second appeal because "[t]he sentencing issues that [he]
wishe[d] to raise . . . [had] not [been] affected by the error . . . that had
necessitated the remand"; "[o]nly an issue arising out of the correction of
the sentence ordered by [the] court could [have] be[en] raised in a subse-
quent appeal").
8 UNITED STATES v. PILEGGI
Here, by contrast, we vacated only Pileggi’s 600-month
term, not his entire sentence.6 Moreover, Pepper does not
"abolish waiver in the context of re-sentencing."7 The govern-
ment waived any challenge to the amount of restitution by
failing to raise it on appeal.8 Because the mandate rule "fore-
closes litigation of issues . . . foregone on appeal," Bell, 5
F.3d at 67, the district court was prohibited from revisiting
restitution on remand.9
6
Pileggi, 361 F. App’x at 479. Although our mandate broadly stated that
"the judgment of the District Court [was] vacated," it remanded the case
only for "proceedings consistent with [our] decision." See Docket Nos. 81-
1, 83. Vacating the restitution order was not consistent with our decision,
which addressed only the propriety of Pileggi’s prison term and vacated
only that aspect of his sentence.
7
United States v. Barnes, 660 F.3d 1000, 1007 (7th Cir. 2011) (holding
that, "when a case is generally remanded to the district court for re-
sentencing, the district court may entertain new arguments as necessary to
effectuate its sentencing intent, but it is not obligated to consider any new
evidence or arguments beyond that relevant to the issues raised on
appeal"), quoted in Susi, 674 F.3d at 285 (finding no "requirement that
district courts disregard a prior waiver and entertain new evidence and
arguments where such is not necessary to effectuate the court’s sentencing
intent").
8
See United States v. Rendelman, 641 F.3d 36, 42 n.7 (4th Cir. 2011)
(finding that a party had abandoned an argument by not pursuing it on
appeal).
9
In Susi, we referred to a district court’s "discretion to decline to con-
sider waived arguments on remand," Susi, 674 F.3d at 284–84 (emphasis
added), but Susi is distinguishable. In Susi, which also involved a fraudu-
lent sweepstakes scheme in Costa Rica, we "vacated [the defendant’s] sen-
tence, including the order of restitution, and remanded the case for
resentencing consistent with the opinion." Id. at 280. "In the initial sen-
tencing, the district court [had] erred in considering as a basis for Susi’s
sentence that the conspiracy entailed sixteen call centers instead of just the
one where Susi worked, and in attributing a $4.2 million loss from all the
call centers to him instead of an amount limited to the one call center." Id.
at 283. But because we "vacat[ed] the sentence in its entirety," id., the dis-
trict court was free to "reconfigure the sentencing plan to satisfy the sen-
tencing factors in 18 U.S.C. § 3553(a)," see Pepper, 131 S. Ct. at 1251.
Nonetheless, we noted that "[n]othing in Pepper . . . require[d] the district
UNITED STATES v. PILEGGI 9
The government’s citation to United States v. Fields, 552
F.3d 401 (4th Cir. 2009), is equally unavailing. See Gov’t Br.
34–35. In Fields, the district court initially sentenced the
defendant to 12 months in prison and a $2,000 fine under the
2000 advisory sentencing guidelines; we vacated the entire
sentence and remanded, ordering the district court to resen-
tence the defendant under the 2006 advisory sentencing
guidelines. Fields, 552 at 403. At resentencing, the district
court still imposed a 12-month term, but waived the fine. Id.On the second appeal, we rejected the government’s conten-
tion that the mandate rule had precluded the lower court from
reconsidering imposition of the fine. Id. at 403–04. We
emphasized that the defendant had "framed the issue on [the
first] appeal broadly"—whether the district court had erred
"when it used the 2000 version of the United States Sentenc-
ing Guidelines to compute the guideline sentence rather than
the less punitive present 2006 version"—and the Court had
"not limit[ed] [its] remand order to a specific issue" beyond
the applicable guidelines manual. Id. at 404.
court to reconsider every component of the sentencing decision during
resentencing." Susi, 674 F.3d at 284.
[A] district court would be well within its authority to decline to
revisit every sentencing issue on remand, unless the mandate
indicates otherwise or the interrelationship of sentencing compo-
nents makes it advisable to do so. There is no reason to require
a district court to plow through the same arguments, take the
same evidence, and make the same findings that it has already
made in the original sentencing where such an effort would serve
no purpose.
Id. at 286. Because "[t]he error requiring [Susi’s] resentencing was unre-
lated to the Sentencing Guidelines calculation," we did not resolve his
claim that "the district court [had] erred in concluding that it was barred
from reconsidering the Sentencing Guidelines calculation" on remand;
instead, we found that any such error was harmless. Id. at 283, 285. Nota-
bly, the government in Susi argued that the remand "was limited to the
issues of restitution and the § 3553(a) analysis"—even though we had
vacated Susi’s entire sentence. Id. at 283.
10 UNITED STATES v. PILEGGI
Here, by contrast, Pileggi’s first appeal framed the issue
narrowly: whether the district court had relied on "clearly
erroneous facts to arrive at the sentence, namely the
[g]overnment’s misrepresentation concerning the diplomatic
assurances given to Costa Rica to secure Pileggi’s extradi-
tion." Pileggi, 361 F. App’x at 477–78. Our opinion focused
only on this issue, and we vacated only that portion of the
sentence that had imposed the 600-month term.10
In sum, our mandate barred the district court from reconsid-
ering the amount of restitution on remand.
B.
"Even though the mandate of an appellate court may not
contemplate resurrecting an issue on remand, the trial court
may still possess some limited discretion to reopen the issue
in very special situations." Bell, 5 F.3d at 67 (internal quota-
tion marks omitted).
These circumstances are: (1) a showing that control-
ling legal authority has changed dramatically; (2)
that significant new evidence, not earlier obtainable
in the exercise of due diligence, has come to light;
or (3) that a blatant error in the prior decision will,
if uncorrected, result in a serious injustice.
Id. (internal quotation marks and alterations omitted). "The
litany of exceptional circumstances sufficient to sidetrack the
[mandate rule] is not only short, but narrowly cabined."
United States v. Rivera-Martinez, 931 F.2d 148, 151 (1st Cir.
1991) (collecting cases).
The government argues that a blatant error in the district
10
Compare Pileggi, 361 F. App’x at 479 ("we vacate Pileggi’s 600-
month sentence and remand with instructions that the case be reassigned
for resentencing") (emphasis added), with Fields, 552 F.3d at 403 ("[w]e
vacate the sentence and remand this case for resentencing").
UNITED STATES v. PILEGGI 11
court’s original restitution calculation, if uncorrected, will "re-
sult in a serious injustice to the victims of Pileggi’s conspir-
acy fraud conviction and . . . run counter to the Mandatory
Victim Restitution Act (‘MVRA’)." Gov’t Br. 35–36. The
government also contends that Llamas, issued after Pileggi’s
original sentencing and appeal, supports the district court’s
reconsideration of restitution on remand. See id. at 15, 45–47.
Neither argument is persuasive.
First, Llamas was not a dramatic change in controlling legal
authority that warrants a departure from the mandate rule. See
Bell, 5 F.3d at 67. In Llamas, the defendant "challenge[d] the
district court’s restitution order of more than $4.2 million,
contending that the court [had] erred in finding him jointly
and severally liable for losses caused by other Costa Rican
fraud schemes." Llamas, 599 F.3d at 390. The government
conceded the error, id., and we relied on our 2003 decision
in United States v. Newsome, 322 F.3d 328 (4th Cir. 2003),
to conclude that the district court had abused its discretion in
ordering Llamas to compensate for losses not attributable to
his offense. Id. at 391. We reasoned that,
[b]ecause the MVRA focuses on the offense of con-
viction rather than on relevant conduct, "the focus of
[a sentencing] court in applying the MVRA must be
on the losses to the victim caused by the offense."
United States v. Newsome, 322 F.3d 328, 341 (4th
Cir. 2003).
Id. at 390–91 (emphasis and alteration in original). Our deci-
sion in Llamas was "thus not a dramatic change in legal
authority, but simply an application" of the MVRA’s plain
language as interpreted by our earlier decision in Newsome.
See Doe v. Chao, 511 F.3d 461, 467 (4th Cir. 2007).
Second, we are not persuaded that the original restitution
order results in serious injustice. Importantly, the government
12 UNITED STATES v. PILEGGI
has not shown good cause for its failure to move for an
amended restitution order before Pileggi’s resentencing.
Under 18 U.S.C. § 3664, which governs the issuance and
enforcement of restitution orders, the government generally
has until 90 days after sentencing to ascertain the amount of
victims’ losses. See 18 U.S.C. § 3664(d)(5). If a victim’s
losses are not finally determined by that time but a victim
subsequently discovers losses, the victim may petition the
court for an amended restitution order. Id. But such an order
"may be granted only upon a showing of good cause for the
failure to include such losses in the initial claim for restitu-
tionary relief." Id. Here, the government simply reanalyzed
the information that it had already collected—the wire trans-
fer records—which it could have done before Pileggi’s first
sentencing.
The government’s citation to Dolan v. United States, 131
S. Ct. 2533 (2010), is unavailing. In Dolan, the Court held
that a district court retained the power to order restitution,
even after expiration of the 90-day post-sentencing period,
when it had made clear prior to the deadline that it intended
to impose restitution. Dolan, 130 S. Ct. at 2537. But the case
is distinguishable. In Dolan, the district court had held open
the restitution order at sentencing because there was "insuffi-
cient information . . . regarding possible restitution payments
that may be owed"; 67 days later, the probation office pre-
pared an addendum to the PSR, recommending a total amount
of restitution. Id. Despite this information, the defendant did
not request a hearing, and the court did not hold a hearing
until about three months after the 90-day deadline had
expired. Id.
Here, by contrast, the original sentencing court made a final
determination of the amount of Pileggi’s restitution at the
September 24, 2008, sentencing. The court did not find "in-
sufficient information" to determine the amount. See Dolan,
130 S. Ct. at 2537. Although the district court increased the
amount by about $321,000 in December 2008, it was not until
UNITED STATES v. PILEGGI 13
about two years later that the government proposed a five-fold
increase in restitution.11 The request came suddenly—during
the resentencing hearing—not in an addendum to the PSR that
would have provided Pileggi some notice. See Dolan, 130 S.
Ct. at 2541 ("the defendant normally can mitigate any harm
that a missed deadline might cause—at least if, as here, he
obtains the relevant information regarding the restitution
amount before the 90–day deadline expires"). Moreover, the
government’s request was based not on new information
brought forth by victims but merely on a more detailed analy-
sis of the same information that the government possessed at
the original sentencing.
Although we are sympathetic to the reality that many of
Pileggi’s victims will not be made whole, we cannot, on the
facts presented, conclude that this misfortune stemmed from
a blatant error in the district court’s original calculation of res-
titution. Rather, it resulted from the government’s unex-
plained failure to comply with the dictates of § 3664. This
failure falls short of the serious injustice required to depart
from the mandate rule. Cf. United States v. Becerra, 155 F.3d
740, 755 (5th Cir. 1998) ("the government cites no case where
our court (or any court, for that matter) has found that a prior
opinion works a manifest injustice where the party claiming
injustice had all the means and incentive to provide the rele-
vant information in the first appeal"), abrogated on other
grounds, as recognized in United States v. Farias, 481 F.3d
289, 291 (5th Cir. 2007).
Because relitigation of the issue of restitution was fore-
11
The government contends that some of the delay was "the result of
Pileggi’s successful appeal." See Gov’t Br. 37. Assuming that is true, it
does not militate against enforcing the mandate rule. To so casually excuse
the government’s failure to raise restitution in a cross-appeal would effec-
tively penalize Pileggi for exercising his appellate rights, simply because
the appeal "shaved 25 years off [his] prison term" and "made it more
likely that some meaningful restitution would be paid to [his] victims." Id.14 UNITED STATES v. PILEGGI
closed in this case, the district court erred when it increased
the amount of restitution on remand.12
III.
For the reasons set forth, we vacate the restitution order and
remand with instructions to the district court to reinstate the
previous restitution order directing Pileggi to make restitution
in the amount of $4,274,078.40.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
TRAXLER, Chief Judge, concurring in the result:
I concur in the result reached in this case. In cases involv-
ing a general remand, the resentencing is de novo, and the dis-
trict court is entitled (but not required) to reconsider any and
all issues relevant to sentencing, whether or not the issues
were raised in the first appeal. See United States v. Susi, 674
F.3d 278, 284-86 (4th Cir. 2012); see also Pepper v. United
States, 131 S. Ct. 1229, 1250-51 (2011) (noting that general
remands for resentencing place no restrictions on district
court’s discretion at resentencing).
The remand for resentencing in this case, however, was a
limited remand that restricted the district court to reconsidera-
tion of the term of imprisonment only. See, e.g., United States
v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993) (remand limited to
consideration of specific issue). The mandate rule therefore
precluded the district court from reviving the restitution issue
foregone by both parties in the original appeal. See id. at 66.
12
Because we find that the district court lacked the authority to recon-
sider the amount of restitution, we do not address Pileggi’s alternative
argument that the evidence does not support a restitution amount of more
than $20 million.
UNITED STATES v. PILEGGI 15
While there are exceptions to the mandate rule, see id. at 67,
none of those exceptions are applicable to this case so as to
permit the district court to change the amount of restitution.