United States v. Anthony Fareri ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 11, 2013 Decided April 9, 2013
No. 11-3098
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTHONY J. FARERI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00054-1)
Rosanna M. Taormina, Assistant Federal Public
Defender, argued the cause for appellant. With her on the
briefs was A.J. Kramer, Federal Public Defender. Tony Axam
Jr., Assistant Federal Public Defender, entered an appearance.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Elizabeth Trosman, Assistant U.S.
Attorney.
Before: GARLAND, Chief Judge, KAVANAUGH, Circuit
Judge, and EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Anthony Fareri, a
stockbroker, sold his clients worthless shares of stock in shell
companies controlled by a co-conspirator. Fareri helped
inflate the price of shares in the shell companies,
recommended the companies to his clients, purchased shares
on behalf of his clients without their permission, ignored
requests by his clients to sell their shares in the companies,
and falsified documents to conceal his scheme. Fareri
ultimately defrauded his clients out of more than $3 million.
Fareri pled guilty to one count of mail fraud, in violation
of 18 U.S.C. § 1341. He was sentenced to 8 years and 9
months of imprisonment and ordered to pay restitution to his
victims. In this direct appeal, Fareri raises three issues. He
challenges his sentence, raises an ineffective-assistance-of-
trial-counsel claim, and requests remand in order for the
District Court to correct the amount of restitution.
First, at sentencing, the District Court applied a two-level
upward adjustment to Fareri’s offense level based on its
finding that some of Fareri’s victims were vulnerable. See
U.S. SENTENCING GUIDELINES MANUAL § 3A1.1 (2012).
Fareri claims that the upward adjustment was improper.
As an initial matter, the Government responds that the
plea agreement bars Fareri from challenging his sentence. We
need not decide whether the text of the plea agreement bars
Fareri from challenging his sentence because, in accepting
Fareri’s guilty plea, the District Court told Fareri that he
“probably retain[ed] the right to challenge any illegal
sentence” and the Government did not object to the District
Court’s characterization of the plea agreement. Plea Entry Tr.
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23, Sept. 20, 2010. This Court has held that a defendant may
rely on the district court’s characterization of a plea
agreement if the Government does not object. See United
States v. Godoy, No. 10-3105, slip op. at 2-4 (D.C. Cir. Feb.
5, 2013). On appeal, Fareri therefore may challenge the
application of the vulnerable victim enhancement.
The vulnerable victim enhancement applies if “the
defendant knew or should have known that a victim of the
offense was a vulnerable victim.” U.S. SENTENCING
GUIDELINES MANUAL § 3A1.1. The commentary to the
enhancement explains that a vulnerable victim is someone
“who is unusually vulnerable due to age, physical or mental
condition, or who is otherwise particularly susceptible to the
criminal conduct.” Id. cmt. n.2. The District Court found that
three of Fareri’s victims were vulnerable victims. We give
“due deference” to the District Court’s application of the
vulnerable victim enhancement to the facts of the case. See
United States v. Henry, 557 F.3d 642, 644-45 (D.C. Cir.
2009).
Fareri knew that these three victims of his scheme were
inexperienced investors; he also knew that one of these
victims was suffering from health problems and that another
was grieving the loss of a spouse. On appeal, the parties
debate at some length how to define “particularly
susceptible.” But we need not anticipate specific fact patterns
not before us. In this case, it was at least reasonable for the
District Court to conclude that the combination of these
victims’ characteristics – and especially the fact that they
were inexperienced investors – made them “particularly
susceptible” to Fareri’s fraud. See United States v. Anderson,
440 F.3d 1013, 1018 (8th Cir. 2006) (affirming application of
vulnerable victim enhancement based on similar
characteristics). Reviewing the matter under the deferential
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“due deference” standard, we therefore uphold the vulnerable
victim enhancement.
Second, Fareri raises an ineffective-assistance-of-trial-
counsel claim. Fareri contends that his trial counsel made
errors relating to the amount-of-loss calculation, a key
component in determining Fareri’s sentence. Fareri argues
that his trial counsel erroneously told him that, under the plea
agreement, he would be able to challenge the amount of loss.
Fareri also says that his trial counsel failed to uncover
evidence that he repaid some of his victims. Fareri asserts
that, together, those errors led him to believe that he would be
able to reduce the amount-of-loss calculation underlying his
sentence and that, if he had known that he would not have
been able to challenge the amount-of-loss calculation, he
would not have pled guilty.
This Court has allowed defendants to bring ineffective-
assistance claims on direct appeal. But because ineffective-
assistance claims typically require factual development, we
generally remand unless the record “conclusively”
demonstrates that the defendant is or is not entitled to relief.
United States v. Rashad, 331 F.3d 908, 909-10 (D.C. Cir.
2003). Like most ineffective-assistance claims raised on
direct appeal, the claim in this case requires further factual
development. We therefore remand Fareri’s ineffective-
assistance claim so that the District Court may consider it in
the first instance.
Third, the Government and Fareri agree that remand is
required to correct the amount of restitution due. In its oral
sentence and in its written judgment, the District Court
imposed restitution in a total amount of $3,646,747.83.
However, the District Court also produced a written list of
payments due to each of Fareri’s victims, and the sum of
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those required payments exceeded the $3,646,747.83 total
announced in the District Court’s oral sentence and listed in
its written judgment. The District Court’s oral sentence –
which indicated a total of $3,646,747.83 – is controlling. See
United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010). We
therefore remand for the District Court to correct the specific
amounts owed to each of Fareri’s victims, so that the amounts
add up to a total of $3,646,747.83.
We affirm Fareri’s sentence. We also remand for the
District Court to consider Fareri’s ineffective-assistance claim
in the first instance and for the District Court to correct the
amount of restitution that Fareri must pay his victims.
So ordered.