United States v. Richard Angelo Zucco

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 28, 2005
No. 04-16568 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00075-CR-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ANGELO ZUCCO,
a.k.a. Rich Zucco,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 28, 2005)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Richard Angelo Zucco appeals his twenty-four-month sentence for escaping
from the federal prison camp to which he was assigned, in violation of 18 U.S.C.
§ 751(a). He first contends that the district court erred in denying him a seven-
level reduction in his offense level pursuant to U.S.S.G. § 2P1.1(b)(2). We review
the district court’s factual findings for clear error and the application of those facts
to the sentencing guidelines de novo. United States v. Bradford, 277 F.3d 1311,
1312 (11th Cir. 2002).
Section 2P1.1(b)(2) provides for a seven-level reduction in a defendant’s
offense level if a defendant who escapes from a federal facility voluntarily returns
within ninety-six hours of the escape. We have recognized that this section
“clearly assumes that the escapee has reconsidered his actions and intends to
surrender.” Id.In this case, shortly after escaping Zucco was spotted by a prison official
and, instead of surrendering, evaded that official in order to avoid being
apprehended. Only after that incident did Zucco decide to return to the prison
camp. He did not return because he reconsidered his actions and decided they were
wrong, he returned because he was spotted on the outside and wanted to avoid
being prosecuted for escaping by pretending that he never left. Based on these
facts, the district court did not err in denying Zucco a reduction under
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§ 2P1.1(b)(2). See id.; see also United States v. Pynes, 5 F.3d 1139, 1140–41 (8th
Cir. 1993) (holding that a § 2P1.1(b)(2) reduction is not warranted where the
defendant returned to custody only after being spotted by law enforcement).
The rest of Zucco’s contentions rely on the Supreme Court’s decision United
States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). He first argues that the
district court’s denial of the § 2P1.1(b)(2) reduction was a violation of Booker. A
Booker error occurs in only two situations. The first is if, under a mandatory
guidelines regime, a defendant’s sentence was increased based on facts that were
neither proven to a jury nor admitted by him. The second is if the defendant was
sentenced under a mandatory guidelines regime. See United States v. Shelton, 400
F.3d 1325 (11th Cir. 2005). The denial of a reduction under § 2P1.1(b)(2)
implicates neither of those situations. As a result, Zucco’s argument that the denial
of a § 2P1.1(b)(2) reduction violates Booker is without merit. See United States v.
Bermudez, 407 F.3d 536, 545 (1st Cir. 2005) (holding that the denial of a
sentencing reduction does not result in an error under Booker).
Zucco next contends that the district court committed a Booker
constitutional error by increasing his sentence based on facts that were neither
proven to a jury nor admitted by him. He also argues that the district court
committed a Booker statutory error by sentencing him under a mandatory
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guidelines system. Zucco is correct that the district court committed both kinds of
Booker error. The district court committed a Booker constitutional error by
imposing, under a mandatory guidelines system, a two-level enhancement for
obstruction of justice based on facts that were neither proven to a jury nor admitted
by Zucco. Similarly, the district committed a Booker statutory error by sentencing
him under a mandatory guidelines regime. Because he made a timely objection
before the district court, we review the Booker errors to determine whether they
were harmless. See United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005);
United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005).
An error is harmless if it did not affect the substantial rights of the
defendant. Paz, 405 F.3d at 948. “A constitutional error, such as a Booker error,
must be disregarded as not affecting substantial rights, if the error is harmless
beyond a reasonable doubt. This standard is only met where it is clear beyond a
reasonable doubt that the error complained of did not contribute to the sentence
obtained.” Id. (quotations and marks omitted).
In sentencing Zucco, the district court judge stated that he had fully
considered all the factors from 18 U.S.C. § 3553(a) and found that Zucco’s 24-
month sentence met the sentencing goals of punishment and specific and general
deterrence. Furthermore, the judge also stated that he “would certainly have
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sentenced Mr. Zucco to the sentence of 24 months if the guidelines were not
otherwise controlling. In fact, it would have been a higher sentence than 24
months for Mr. Zucco.” Given those statements, it is clear beyond a reasonable
doubt that the Booker constitutional error did not contribute to the sentence Zucco
received. See United States v. Robles, 408 F.3d 1324, 1327–28 (11th Cir. 2005)
(holding that the Booker constitutional error in that case was harmless beyond a
reasonable doubt where the district court stated that it would have given the same
sentence even if the guidelines had been advisory).
Given that the Booker constitutional error is harmless beyond a reasonable
doubt, the Booker statutory error, which is subject to a less onerous harmless error
standard, is also harmless.1 See Mathenia, 409 F.3d at 1292; Robles, 408 F.3d at
1327.
AFFIRMED.
1
Zucco also asserts that Booker was violated when the district court imposed his
sentence to run consecutively to the term he was already incarcerated for. The district court,
however, was bound to do so by the guidelines. See U.S.S.G. § 5G1.3(a). As a result, Zucco’s
argument is subsumed by his larger argument that the district court committed a Booker
statutory error by sentencing him under a mandatory guidelines regime.
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