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United States v. Vitrano, Thomas P. ( 2007 )


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  •                           In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-1512
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    THOMAS P. VITRANO,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 02-CR-199—Rudolph T. Randa, Chief Judge.
    ____________
    ARGUED DECEMBER 6, 2006—DECIDED JULY 19, 2007
    ____________
    Before POSNER, RIPPLE, and WOOD, Circuit Judges.
    WOOD, Circuit Judge. On August 8, 2003, Thomas
    Vitrano pleaded guilty to one count of possessing a fire-
    arm as a felon and one count of possessing a firearm while
    subject to a domestic abuse injunction, both in violation of
    
    18 U.S.C. § 922
    (g). The firearm at issue was a Remington
    870 shotgun that Vitrano had taken with him to go duck
    hunting. He was initially sentenced to 120 months’
    imprisonment—the term that the district judge believed
    was the statutory maximum—but the United States
    appealed the sentence claiming that Vitrano should have
    been classified a career offender under the Armed Career
    Criminal Act, 
    18 U.S.C. § 924
    (e) (“ACCA”). See United
    States v. Vitrano, 
    405 F.3d 506
    , 507 (7th Cir. 2005)
    2                                              No. 06-1512
    (“Vitrano I”). We agreed with the government and re-
    manded for re-sentencing. In light of Vitrano’s status as an
    armed career criminal, his new guideline range on remand
    was 235-293 months; the new statutory maximum to which
    he was exposed was life in prison. The government pro-
    duced evidence for the first time at his second sentencing
    hearing showing that Vitrano was exceptionally violent
    toward people, not just ducks. The judge, considering the
    new evidence, re-sentenced Vitrano to 360 months’ im-
    prisonment, 67 months above the advisory guideline range.
    On appeal, Vitrano raises multiple challenges to his re-
    sentencing proceedings. Finding no error, we affirm.
    I
    The procedural background of the case is spelled out in
    Vitrano I, for those who are interested; we see no need to
    repeat it here. Each of Vitrano’s current claims on appeal
    relates to the government’s introduction at his second
    sentencing of damaging prior uncharged conduct that was
    not before the district court the first time around. The
    particular evidence to which Vitrano takes exception
    reveals that he sent multiple functioning pipe bombs
    disguised as a birthday present to his former girlfriend’s
    house. The pipe-bomb incident technically bore no rela-
    tion to the shotgun possession for which Vitrano pleaded
    guilty (except that the government discovered the shotgun
    during the course of its investigation of the pipe-bomb
    incident), but the evidence at the second sentencing
    hearing demonstrated that Vitrano was responsible for
    them. Two police officers who investigated the offense
    testified that the bombs were functioning and that some
    of the parts contained in them were traceable to Vitrano.
    The prosecution also presented statements by jailhouse
    informants claiming that Vitrano had discussed with them
    various details about the bombing, including certain facts
    No. 06-1512                                              3
    that the government posited Vitrano could have known
    about only if he had actually carried out the plot.
    The government did not limit its new evidence to the
    pipe-bomb incident. It also detailed numerous other epi-
    sodes from Vitrano’s exceedingly violent past. It summa-
    rized out-of-court statements by Vitrano’s mother, daugh-
    ter, an ex-wife and multiple former girlfriends—includ-
    ing Patricia Gerard, the recipient of the “birthday pres-
    ent” pipe bombs—recounting harrowing acts of violence.
    Vitrano’s first wife, for example, stated that he would
    “continuously beat her,” that he broke her nose, jaw, and
    ribs, and that at least once he threw what appeared to
    be a lit pipe bomb at her. The other statements were
    similarly disturbing; at least three women, including
    Gerard, had obtained restraining orders against Vitrano.
    The police officers who testified at sentencing—all
    experienced—agreed that Vitrano was “one of the most
    violent individuals [they had] encountered in [their]
    career[s].”
    In imposing a sentence, the district judge explicitly
    considered the factors outlined in 
    18 U.S.C. § 3553
    (a). The
    court looked first at Vitrano’s extensive criminal history,
    his prior drug use and mental instability, as well as his
    demonstrated disrespect for authority. It concluded that
    the government had demonstrated that Vitrano was the
    person responsible for the pipe bombs left at Gerard’s
    home, and then it considered the other evidence of
    Vitrano’s violent past. See 
    18 U.S.C. § 3553
    (a)(1). It was
    that factor, more than any others, that drove the court’s
    decision to choose a sentence above the guideline range.
    Vitrano challenges his new sentence on five grounds: he
    argues first that the preponderance of the evidence
    standard used at sentencing violates due process; second
    that the district court erred by considering evidence that
    was not “relevant” to the charged offense; third that the
    4                                              No. 06-1512
    court erroneously failed to make an explicit ruling on his
    pre-sentence motion; fourth that the government’s use of
    new damaging evidence at the second sentencing was
    the product of vindictiveness; and finally, that the govern-
    ment breached a promise not to use that evidence against
    him at sentencing. We consider each argument in turn.
    II
    Vitrano’s claim that facts found at sentencing must be
    proven beyond a reasonable doubt is entirely without
    merit, as we have consistently held, and as the Supreme
    Court has recently underscored. See Rita v. United States,
    
    127 S.Ct. 2456
    , 2466 (2007); see also United States v.
    Dean, 
    414 F.3d 725
    , 730 (7th Cir. 2005); United States v.
    Robinson, 
    435 F.3d 699
    , 701 (7th Cir. 2006). In light of
    Rita, we consider this argument foreclosed.
    His second claim—that conduct considered by a district
    court in imposing a sentence above the guideline range
    must be “based on factors relevant to the offense of
    conviction”—warrants only slightly more attention. He
    maintains that only those incidents that are somehow
    related to his use of a shotgun for duck hunting can be
    considered by the district judge at sentencing. Since, in
    his view, the uncharged allegations of violence toward
    his ex-wife and girlfriends are “completely unrelated” to
    his possession of a shotgun for hunting, it was improper
    for the district judge to enhance his sentence based on
    them.
    Vitrano is confusing those guideline provisions that
    require the district judge to make certain factual findings
    in calculating the applicable guideline range with the
    factors that may be considered under § 3553(a) in choosing
    the ultimate sentence. Although provisions in the guide-
    lines such as U.S.S.G. 1B1.3(a)(2)—the “Relevant Conduct”
    No. 06-1512                                                5
    provision—allow a district judge to enhance a defendant’s
    advisory guideline range only for conduct that is “part of
    the same course of conduct or common scheme or plan as
    the offense of conviction,” once the applicable range is
    determined, the judge’s ability to choose which sentence to
    impose is not so constrained. See United States v. Orozco-
    Vasquez, 
    469 F.3d 1101
    , 1107 (7th Cir. 2006) (“Sentencing
    post-[United States v.] Booker[, 
    543 U.S. 220
     (2005)]
    requires the sentencing judge to properly calculate the
    advisory guidelines range in the same manner as before
    Booker and then to make a discretionary decision whether
    to sentence the defendant within the advisory range or
    outside it in light of the very broadly stated sentencing
    factors set forth in § 3553(a).”). 
    18 U.S.C. § 3661
    , entitled
    “Use of information for sentencing,” states, “No limitation
    shall be placed on the information concerning the back-
    ground, character, and conduct of a person convicted of an
    offense which a court of the United States may receive and
    consider for the purpose of imposing an appropriate
    sentence.” As we stated in United States v. Nowicki, with
    respect to the sentencing process, “The trial judge may
    ‘appropriately conduct an inquiry broad in scope, largely
    unlimited either as to the kind of information he may
    consider, or the source from which it might come.’ ” 
    870 F.2d 405
    , 406-07 (7th Cir. 1989) (quoting United States v.
    Nesbitt, 
    852 F.2d 1502
    , 1521 (7th Cir. 1988)). This has
    long been understood to include “reliable evidence of
    wrongdoing for which the defendant has not been charged
    or convicted.” Nowicki, 
    870 F.2d at 407
    .
    Vitrano cites United States v. Castro-Juarez for the
    proposition that we should “look at pre-Booker law by
    analogy and ask how the sentence would have fared under
    decisions that analyzed the reasonableness of upward
    departures.” 
    425 F.3d 430
    , 434 (7th Cir. 2005). But in
    Castro-Juarez, we wrote that since Booker,
    6                                             No. 06-1512
    [W]e have looked to [the “upward departures” provi-
    sion of the guidelines] and [pre- Booker cases] only by
    way of analogy, and while [the defendant’s] sentence
    might not have been sustainable as an “upward depar-
    ture” before Booker, it does not follow that [his sen-
    tence] is necessarily unreasonable. Before Booker, we
    recognized that district courts were required to sen-
    tence within the guideline range except in unusual
    cases, and anything but a loose comparison to pre-
    Booker departure cases would vitiate the post-Booker
    discretion that sentencing courts enjoy. All that is
    necessary now to sustain a sentence above the guide-
    line range is an adequate statement of the judge’s
    reasons, consistent with section 3553(a), for thinking
    the sentence that he has selected is indeed appropriate
    for the particular defendant.
    
    Id. at 436
     (internal citation and quotation omitted). See
    also United States v. Valle, 
    458 F.3d 652
    , 657 (7th Cir.
    2006) (“[O]ur pre-Booker standards for evaluating depar-
    tures are no longer binding. . . .”); United States v.
    Arnaout, 
    431 F.3d 994
    , 1003 (7th Cir. 2005) (noting “that
    the concept of ‘departures’ has been rendered obsolete
    in the post-Booker world”).
    Vitrano has not specifically challenged the reasonable-
    ness of his sentence, and so we have no occasion to con-
    sider that question. (Given the judge’s explanation and
    Vitrano’s record, however, nothing jumps out as unrea-
    sonable.) All that is before us is the question whether it
    was permissible for the district judge to consider the
    evidence included in the government’s 2006 sentencing
    memorandum in arriving at the ultimate sentence. We
    conclude that it was.
    We turn next to Vitrano’s claim that the district court
    failed to rule on his pre-sentencing motion. That motion
    raised essentially the same claims that Vitrano is present-
    ing here: (1) that the court should not base an enhance-
    No. 06-1512                                                7
    ment on “irrelevant” conduct; (2) that the request for an
    “upward departure” is the product of vindictiveness;
    (3) that an “upward departure” is a breach of a promise
    made by the prosecutor; and (4) that the government did
    not give defense counsel specific notice of the rationale it
    intended to use in arguing for an “upward departure.” He
    argues that the failure to rule explicitly on his motion
    violates FED. R. CRIM. P. 32(i)(3)(B), which states, “At
    sentencing the Court must—for any disputed portion of the
    pre-sentence report or other controverted matter—rule on
    the dispute or determine that a ruling is unnecessary
    either because the matter will not affect sentencing, or
    because the Court will not consider the matter in sen-
    tencing.”
    The purpose of Rule 32 is “to ensure that sentencing
    is based on reliable facts found by the court itself after
    deliberation. . . .” United States v. Darwich, 
    337 F.3d 645
    ,
    666 (6th Cir. 2003). The rule applies specifically to factual
    disputes. United States v. Cunningham, 
    429 F.3d 673
    , 678
    (7th Cir. 2005) (“The rule may be limited to factual
    disputes. The cases so assume, without so stating out-
    right.”). None of Vitrano’s arguments raises a dispute
    about any of the facts on which the district judge relied
    in enhancing his sentence; he simply asserts various
    reasons why those facts should not have been considered
    at all. Rule 32 imposes no affirmative duty on the district
    court to address these general points. In any event, the
    district judge, who noted at sentencing that he had read all
    the briefs and submissions, clearly and accurately stated
    its basis for imposing a sentence above the guidelines
    range. As the district court explained:
    Post-Booker, the Court can look at the factors under
    3553 . . . . In doing so, the Court . . . looks at the
    history and characteristics of the Defendant. It also
    looks at the nature of the offense in making those
    calculations. And in the past any deviation based on
    8                                              No. 06-1512
    those factors from the sentencing guidelines required
    that they be outside the heartland of cases. Now, the
    Court can consider those factors and, as long as the
    sentence is reasonable, not have to make a finding
    that any of the factors or any of the facts that it
    utilizes are outside the heartland of cases as described
    by the sentencing guidelines.
    As for Vitrano’s other arguments, the district court did
    not err by leaving them unaddressed. See Cunningham,
    
    429 F.3d at 678
     (“A sentencing judge has no more duty
    than we appellate judges do to discuss every argument
    made by a litigant; arguments clearly without merit can,
    and for the sake of judicial economy should, be passed over
    in silence. . . .”). Vitrano has not shown that the district
    court committed error at sentencing.
    III
    We now consider Vitrano’s complaints about the prosecu-
    tor’s behavior at sentencing. The government’s decision to
    introduce the evidence about the pipe bombs and the
    other uncharged violent conduct must have been vindic-
    tive, in Vitrano’s view, because it did not present this
    information at his first sentencing. He relies on the
    Supreme Court’s decision in North Carolina v. Pearce,
    which held, “Due process of law . . . requires that vindic-
    tiveness against a defendant for having successfully
    attacked his first conviction must play no part in the
    sentence he receives after a new trial.” 
    395 U.S. 711
    , 725
    (1968). The ruling in Pearce, however, does not help
    Vitrano. Pearce was intended in part to protect a defen-
    dant’s right to appeal or to attack his first conviction
    collaterally without fear of reprisal. Here, though, it was
    the government that appealed the initial sentence, and it
    did so (as it was entitled to do under 
    18 U.S.C. § 3742
    (b))
    for the very purpose of exposing Vitrano to more jail time.
    No. 06-1512                                               9
    The government made it abundantly clear throughout
    the litigation that it intended to seek as lengthy a sen-
    tence as was legally possible. The plea agreement stated
    that “[t]he government will recommend to the sentencing
    court that the defendant is an Armed Career Criminal,”
    and the government specifically reserved the right “to
    recommend an upward departure and/or consecutive
    sentences based on aggravating circumstances.”
    It followed through on its promise and argued at the
    first sentencing that Vitrano was a career offender. The
    government additionally stated at that point that it
    believed “very strongly” that Vitrano deserved a sentence
    at the high end of the guideline range. Unsuccessful in
    persuading the district court that Vitrano qualified for
    the ACCA enhancement, the government appealed the
    issue. After it won, it announced at re-sentencing that
    “[w]e did not take the appeal to establish that the Defen-
    dant was an armed career criminal merely as an academic
    exercise.” Nothing in this record suggests that the govern-
    ment’s actions on re-sentencing had anything to do with
    Vitrano’s legal strategy on appeal. There was no vindic-
    tiveness here.
    There is also no evidence in the record that the use of
    the uncharged conduct at the re-sentencing breached any
    promise made by the prosecutor, as Vitrano alleges. In
    fact, there is substantial evidence that no such promise
    was ever made. Vitrano does not dispute the fact that the
    plea agreement contains an integration clause, which
    states that “no threats, promises, representations, or other
    inducements have been made, nor agreements reached,
    other than those set forth in this agreement, to induce the
    defendant to plead guilty.” Moreover, as noted, the agree-
    ment specifically preserves the government’s right to
    advise the district court and the probation office of any
    and all information which might be pertinent to sentenc-
    ing, as well as the right to seek an upward departure
    10                                           No. 06-1512
    based on aggravating circumstances. When asked at his
    change of plea hearing whether there were any “threats or
    promises . . . aside from what’s contained in this Plea
    Agreement,” Vitrano replied, “No, Your Honor.” His
    attorney’s stated recollection to the contrary does not
    outweigh the documented evidence in the record.
    IV
    We hold that neither the district court nor the govern-
    ment committed error during Vitrano’s re-sentencing
    proceedings. The sentence is therefore AFFIRMED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—7-19-07