United States v. Riggi, No. 09-4391 (2d Cir. 2011)
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Defendant appealed from a judgment of conviction and sentence, arguing that his rights under the Ex Post Facto Clause were violated by the application of the 2008 Sentencing Manual to a murder conspiracy that concluded in 1989. Defendant contended that his alleged violation and his ignorance of his ex post facto rights rendered the appeal-waiver provision in his plea agreement unenforceable. The court rejected defendant's claims and held that the plea waiver was enforceable. Accordingly, the court dismissed defendant's appeal.
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09-4391-cr United States v. Riggi (Abramo) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: January 13, 2011 Decided: August 10, 2011) Docket No. 09-4391-cr - - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.GIOVANNI RIGGI, also known as John Riggi, also known as Uncle John, GIROLAMO PALERMO, also known as Jimmy Palermo, CHARLES MAJURI, STEFANO VITABILE, also known as Steve Vitabile, FRANCESCO POLIZZI, also known as johndoe6, also known as Frank Polizzi, also known as Francesco Polizzi, ANTHONY MANNARINO, also known as Anthony Marshmallow, also known as Anthony Marshmallo, LOUIS CONSALVO, also known as johndoe8, also known as Louie Eggs, also known as Frank Scarabino, GREGORY RAGO, FRANK D AMATO, BERNARD NICASTRO, FRANK SCARABINO, also known as Franky the Beast, GIUSEPPE SCHIFILLITI, also known as Pino Schifilliti, CHARLES STANGO, also known as Charlie the Hat, also known as The Mad Hetter, also known as Goombs, also known as Goombsie, JOSEPH COLLINA SR., SIMONE PALERMO, also known as Daddy, SALVATORE TIMPANI, also known as Sal the Barber, also known as Little Sal, JOSEPH BRIDESON, also known as Big Joey, AMERICO MASSA, also known as Mike Massa, MARTIN LEWIS, RUBEN MALAVE, MICHAEL SILVESTRI, Defendants, PHILIP ABRAMO, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x 1 2 3 4 5 Before: JACOBS, Chief Judge, WESLEY and CHIN, Circuit Judges. Defendant-Appellant Philip Abramo appeals from a 6 judgment of conviction and sentence of the United States 7 District Court for the Southern District of New York 8 (Rakoff, J.), arguing that his rights under the Ex 9 Post Facto Clause were violated by the application of the 10 2008 Sentencing Manual to a murder conspiracy that concluded 11 in 1989. 12 ignorance of his ex post facto rights render the appeal- 13 waiver provision in his plea agreement unenforceable. 14 15 He contends that this alleged violation and his We enforce the appeal-waiver provision and dismiss the appeal. 16 17 18 19 20 21 22 23 24 25 26 27 28 INGA L. PARSONS, Marblehead, MA, for Defendant-Appellant. STEVE C. LEE, Assistant United States Attorney (Andrew L. Fish, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. DENNIS JACOBS, Chief Judge: Defendant-Appellant Philip Abramo appeals from a 29 judgment of conviction and sentence of the United States 30 District Court for the Southern District of New York 2 1 (Rakoff, J.), arguing that his rights under the Ex 2 Post Facto Clause were violated by the application of the 3 2008 Sentencing Manual to a murder conspiracy that concluded 4 in 1989. 5 ignorance of his ex post facto rights render the appeal- 6 waiver provision in his plea agreement unenforceable. 7 He contends that this alleged violation and his Abramo returns to this Court several years after we 8 vacated his conviction and life sentence, holding that the 9 admission of eight plea allocutions of non-testifying co- 10 conspirators was plain error under the intervening Crawford 11 v. Washington decision. 12 States v. Riggi, 541 F.3d 94 (2d Cir. 2008). 13 Abramo pled guilty pursuant to a plea agreement to charges 14 that carried a greatly reduced maximum aggregate sentence of 15 eighteen years: conspiracy to commit murder, conspiracy to 16 commit loansharking, and receiving the proceeds of 17 extortion, in violation of 18 U.S.C. §§ 1959(a)(5), 371, and 18 880, respectively. 541 U.S. 36 (2004); see United On remand, 19 The plea agreement contained a broad appeal-waiver 20 provision by which Abramo agreed to forgo appealing any 21 sentence of eighteen years or less.1 1 The parties also The full waiver reads: It is agreed (i) that the defendant will not file a direct appeal, nor litigate under Title 28, 3 1 stipulated to several Guidelines particulars: first, that 2 [t]he Guidelines provisions in effect as of November 1, 3 2008, apply to this case ; second, that the appeal waiver 4 was binding even if the Court employ[ed] a Guidelines 5 analysis different from that stipulated to [t]herein ; 6 third, that the Guidelines sentence was the statutory 7 maximum of 216 months. 8 9 10 11 Joint Appendix at 59, 61, 63. The plea was accepted by the district court at a July 9, 2009 plea colloquy. Abramo confirmed he was knowingly relinquishing the right to appeal. However, Abramo s sentencing memorandum raised an 12 interesting ex post facto issue. 13 conspiracy ended in 1989 upon the death of the targeted 14 victim. 15 significantly in 1990: Conspiracies that result[ed] in the 16 death of a victim were linked to the first-degree murder The charged murder The Guidelines for murder conspiracy were raised United States Code, Section 2255 and/or Section 2241, any sentence of 18 years (i.e., the Stipulated Guidelines Sentence) or less, and (ii) that the Government will not appeal any sentence of 18 years. This provision is binding on the parties even if the Court employs a Guidelines analysis different from that stipulated to herein. Furthermore, it is agreed that any appeal as to the defendant s sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) the above stipulation. Joint Appendix at 63. 4 1 Guidelines. See U.S.S.G. §§ 2A1.1, 2A1.5(c)(1); id. App. C, 2 amend. 311 (1990). 3 Guidelines--as stipulated--would violate his rights under 4 the Ex Post Facto Clause because this significant 5 enhancement was added after the charged murder conspiracy 6 had ended.2 7 resulted in a range of 78 to 97 months.) Abramo argued that applying the 2008 (Applying the 1989 Guidelines would have 8 But Abramo did not move to withdraw his plea; he raised 9 the issue only for the district [c]ourt s attention as part 2 The one-book rule raises a hurdle for Abramo. A sentencing court must generally apply the version of the Guidelines that is in effect at the time of sentencing, United States v. Rodriguez, 989 F.2d 583, 587 (2d Cir. 1993); but if the court determines that the application would violate the Ex Post Facto Clause, it shall use the Guidelines Manual in effect on the date that the offense of conviction was committed, U.S.S.G. § 1B1.11(b)(1). Where multiple offenses were committed (and the present Manual would trigger an ex post facto violation), the one-book rule dictates that the Guidelines Manual in effect for the most recent offense is applied to all offenses. See id. § 1B1.11(b)(2)-(3). The superseding information alleges that the loansharking conspiracy ran from 1990 through October 2000. Under the one-book rule, the earliest Manual that could apply is the 1999 version, which contains the stricter murder-conspiracy provisions. Abramo counters that he technically allocuted only to conduct through October 1990, which he argues supersedes the date range from the information (thus making the 1989 Guidelines applicable and preserving the ex post facto issue). Because we enforce the appeal waiver, we need not reach this issue. 5 1 of its review of [the 18 U.S.C.] § 3553(a) factors, as a 2 relevant fact . . . in assessing a fair and just sentence. 3 Joint Appendix at 107-09. 4 requested sentence, which sought a reduction in the 216- 5 month statutory maximum for the time he served on related 6 charges in Florida.3 7 Nor did the issue factor into his When the issue was raised at sentencing, the district 8 court viewed the discrepancy between the 1989 and 2008 9 murder-conspiracy Guidelines as evidence that the 10 guidelines are not operating in the manner in which they 11 were intended to operate. 12 court indicated that the discrepancy therefore would not 13 make the slightest difference in [Abramo s] sentence, id.; 14 it instead referenced the nature of the offense itself: 15 16 17 18 19 20 Joint Appendix at 157. The [L]ooking at the conspiracy to murder, why is that not an offense that calls for a[n] 18 year penalty? . . . [W]hat crime more calls out for deterrence, for punishment, for the most severe penalties that the court allows than getting together to murder a human being? 21 Joint Appendix at 172. But because the court had to select 22 a Guidelines range, Gall v. United States, 552 U.S. 38, 49 3 Abramo s primary concern was to seek a downward departure for the 70 months (61 months after good time) he served in Florida on related stock-fraud charges. Due to a long delay in the sentencing for the conviction that we later vacated, Abramo lost the opportunity for the Florida offense to run concurrently. 6 1 (2007), it chose to apply the 2008 Guidelines. Abramo was 2 sentenced to 186 months imprisonment: the 216-month 3 statutory maximum with a partial offset for the 70-month 4 sentence he served in Florida. 5 This appeal followed. Abramo argues that the 6 application of the harsher murder-conspiracy provisions in 7 the 2008 Manual violated the Ex Post Facto Clause. 8 offers two theories as to why the appeal-waiver provision is 9 unenforceable: first, his ex post facto rights were He 10 unwaivable; second, any waiver was unknowing, due to his 11 ignorance of his ex post facto rights. 12 13 14 DISCUSSION Waivers of the right to appeal a sentence are 15 presumptively enforceable. 16 (Vigil), 628 F.3d 93, 98 (2d Cir. 2010). 17 repeatedly upheld the validity of [appeal] waivers if they 18 are knowingly, voluntarily, and competently provided by the 19 defendant. 20 (2d Cir. 2000). 21 enforceability of a waiver . . . occupy a very circumscribed 22 area of our jurisprudence. 23 agreements according to contract law principles, United United States v. Arevalo We have United States v. Gomez-Perez, 215 F.3d 315, 318 The exceptions to the presumption of the Id. at 319. 7 We construe plea 1 States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995), but 2 because plea agreements are unique contracts, we temper the 3 application of ordinary contract principles with special due 4 process concerns for fairness and the adequacy of procedural 5 safeguards. 6 (2d Cir. 2010) (internal quotation marks and ellipsis 7 omitted). United States v. Woltmann, 610 F.3d 37, 39-40 8 9 10 I A violation of a fundamental right warrants voiding an 11 appeal waiver. For example, we have voided appeal waivers 12 where the sentence imposed was based on unconstitutional 13 factors--such as race, see Gomez-Perez, 215 F.3d at 319, 14 naturalized status, see, e.g., United States v. Jacobson, 15 15 F.3d 19, 23 (2d Cir. 1994), or the ability to pay 16 restitution, see, e.g., United States v. Johnson, 347 F.3d 17 412, 415, 419 (2d Cir. 2003). 18 waivers where a sentencing court failed to enunciate any 19 rationale for the defendant s sentence, and thus 20 abdicat[ed] [its] judicial responsibility. 21 F.3d at 40 (internal quotation marks omitted) (voiding 22 waiver because sentencing court relied on plea agreement to 23 the exclusion of the 18 U.S.C. § 3553(a) factors and a Similarly, we have voided 8 Woltmann, 610 1 2 U.S.S.G. § 5K1.1 letter urging a below-Guidelines sentence). On the other hand, other meaningful errors are 3 insufficient to void an appeal waiver. We have enforced 4 waivers where a sentence was arguably imposed contrary to a 5 statutory requirement. 6 (enforcing appeal waiver despite potential noncompliance 7 with statement-of-reason requirement in 18 U.S.C. 8 § 3553(c)(1), because the noncompliance--if any--did not 9 present the extraordinary circumstances of the See Yemitan, 70 F.3d at 748 10 impermissible bias or abdication cases). 11 an appeal waiver notwithstanding the defendant s claim that 12 the sentencing court failed to make certain downward 13 departures prior to sentencing. 14 971 F.2d 876, 896 (2d Cir. 1992); see also United States v. 15 Buissereth, 638 F.3d 114, 115-16 (2d Cir. 2011) (enforcing 16 appeal waiver despite district court s failure to: rule on 17 [i] objections to the pre-sentence report (PSR) and [ii] 18 requests for downward departures; adopt findings of PSR; 19 discuss the § 3553(a) factors; and calculate applicable 20 sentencing range). 21 We also enforced United States v. Rivera, The decisive considerations dividing these cases appear 22 to be the nature of the right at issue and whether the 23 sentence was reached in a manner that the plea agreement 9 1 did not anticipate. United States v. Liriano-Blanco, 510 2 F.3d 168, 174 (2d Cir. 2007). 3 right, a defendant pleading guilty can waive elemental 4 constitutional and statutory rights. 5 Braimah, 3 F.3d 609, 611 (2d Cir. 1993); see also McCarthy 6 v. United States, 394 U.S. 459, 466 (1969) ( A defendant who 7 enters [a guilty] plea simultaneously waives several 8 constitutional rights . . . . ); United States v. Waters, 23 9 F.3d 29, 36 (2d Cir. 1994) (holding that ex post facto As to the nature of the United States v. 10 challenge to statute of conviction was waived by pleading 11 guilty without preserving the issue). 12 may be deemed incapable of waiving a right that has an 13 overriding impact on public interests, United States v. 14 Ready, 82 F.3d 551, 555 (2d Cir. 1996), as such a waiver may 15 irreparably discredit[] the federal courts, id. at 556 16 (quoting United States v. Mezzanatto, 513 U.S. 196, 204 17 (1995)). 18 defendant who waives his right to appeal does not subject 19 himself to being sentenced entirely at the whim of the 20 district court. 21 (2d Cir. 1992). 22 23 However, a defendant As to unanticipated matters at sentencing, a United States v. Marin, 961 F.2d 493, 496 Neither consideration warrants voiding Abramo s appeal waiver. There is no suggestion that the sentencing judge 10 1 was biased or that he abdicated his judicial responsibility; 2 to the contrary, the constitutional error during sentencing 3 arose following a careful consideration of a baffling legal 4 issue--if indeed there was any error.4 5 Abramo s knowledge aside, the sentencing process was exactly 6 as anticipated: The district court applied the 2008 7 Guidelines, as contemplated by the following three 8 stipulations from the plea agreement: (1) that the 2008 9 Guidelines be used; (2) that the applicable Guidelines Any issue as to 10 sentence was eighteen years; and (3) that the agreement was 11 binding even if the court used a different Guidelines range. 12 Joint Appendix at 59-62. 13 Abramo s waiver, and recognizing the waiver does not impugn 14 the integrity of the judiciary or the sentencing process. No public interest was impaired by 4 Because the Guidelines are only advisory, applying a provision that was amended after the charged offense violates the Ex Post Facto Clause only where there was a substantial risk that the imposed sentence was more severe because of the amendment. United States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010) (quoting United States v. Turner, 548 F.3d 1094, 1100 (D.C. Cir. 2008)), cert. denied, 131 S. Ct. 1813 (2011). Here, Judge Rakoff was aware of the discrepancy between the two Manuals, but concluded that it had no effect on the sentence he was imposing because the Guidelines were not operating in a way that g[ave] the Court any meaningful guidance. Joint Appendix at 158. This explicit consideration of the phenomenon that arguably implicates the Ex Post Facto Clause, and the decision to discount or disregard the provision said to create the violation, may eliminate any significant risk of a more severe sentence. 11 1 Rather, by agreeing not to appeal, Abramo avoided another 2 life sentence and capped his sentencing exposure. 3 government presumably would not have offered the deal if the 4 lower Guidelines range were applicable.) 5 circumstances a waiver were found unenforceable, then the 6 covenant not to appeal becomes meaningless and would cease 7 to have value as a bargaining chip in the hands of 8 defendants. 9 (The If in such Yemitan, 70 F.3d at 746, 748. United States v. Rosa, 123 F.3d 94 (2d Cir. 1997), is 10 not to the contrary. In Rosa, we noted in dicta that [w]e 11 will certainly often be willing to set aside the waiver and 12 accept appeal when constitutional concerns are implicated, 13 whether those concerns be related to a particular 14 constitutional provision such as the ex post facto clause 15 . . . . 16 read in view of the disturbing characteristic[s], id. at 17 100, of the plea agreement in Rosa: The parties did not 18 stipulate to a sentence below which the defendant would not 19 appeal (in this case, eighteen years); rather, the defendant 20 agreed not to appeal a within-Guidelines sentence regardless 21 of the court s Guidelines calculation. 22 may [have] subject[ed] a defendant to a sentence vastly 23 greater than he, or possibly even the Government, could have Id. at 101 (emphasis added). 12 This dicta should be The agreement thus 1 anticipated. 2 era of mandatory Guidelines, a variable with impact on ex 3 post facto issues. 4 waiver notwithstanding its disturbing characteristic[s], 5 id.) 6 7 Id. In any event, the dicta dates from the (Moreover, the Rosa court enforced the II Abramo argues that he did not knowingly or 8 intelligently agree to the appeal waiver because he was 9 ignorant of his existing ex post facto rights. He invokes 10 contract principles, classifying the Guidelines stipulations 11 as a mutual mistake of fact that voids the contract. 12 Br. at 26. 13 Abramo A mutual mistake concerning the proper Guidelines range 14 is an insufficient basis to void a plea agreement. 15 United States v. Rosen, 409 F.3d 535 (2d Cir. 2005), the 16 parties overlooked an ex post facto issue (among others) 17 when calculating the stipulated Guidelines range in the plea 18 agreement, id. at 541-42; the district court applied the 19 otherwise proper calculation, which yielded a stricter 20 Guidelines range, id. at 544.5 5 In We held that the defendant s Resolving a potential ex post facto issue should yield a more lenient result, but other errors in the calculation led to the stricter range. (The enhancement that triggered the potential ex post facto issue had been erroneously omitted from the parties calculation, so applying the earlier Guidelines Manual did lower the 13 1 request to withdraw his plea was properly denied. Because 2 the plea agreement contained express provisions with 3 respect to the possibility of a mistaken prediction as to 4 sentencing calculations, the agreement was not a proper 5 candidate for rescission on the ground of mutual mistake. 6 Id. at 548-49. 7 provision, but we see no reason why Rosen s approach would 8 not be valid in this context as well. 9 Castillo, 303 F. App x 989 (2d Cir. 2008) (summary order).) (Rosen did not involve an appeal-waiver See United States v. 10 But Rosen (and Castillo) involved Guidelines 11 calculation errors of the garden variety, not alleged 12 violations of constitutional rights.6 13 Rosen by claiming that the Guidelines error here arose from 14 his ignorance of existing7 constitutional rights. 15 Br. at 27. Abramo distinguishes Abramo (The government does not argue that Rosen is ultimate Guidelines range). 6 As noted, the Rosen court recognized the potential ex post facto issue that the parties overlooked, and applied the correct Manual; Rosen thus did not argue that his ex post facto (or other constitutional) rights were violated. 7 Our cases foreclose the possibility that a plea agreement can be nullified by a change in law after the agreement is executed: A defendant s inability to foresee that subsequently decided cases would create new appeal issues does not supply a basis for failing to enforce an appeal waiver. United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005) ( Morgan II ). [T]he possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements. Id. 14 1 controlling; in fact, it does not even cite Rosen.) 2 Abramo s argument derives from our dicta: We have hinted 3 that ignorance of existing rights may void a plea agreement 4 and a waiver of appellate rights, United States v. Roque, 5 421 F.3d 118, 122 (2d Cir. 2005). 6 States v. Morgan ( Morgan I ), we did not foreclose the 7 possibility that an otherwise valid waiver could be 8 unenforceable if a defendant can establish that he was 9 unaware of his Apprendi rights at the time he entered into For example, in United 10 his plea agreement. 11 see also Morgan II, 406 F.3d at 137 n.2 (reiterating that 12 existing-rights argument is not reached); United States v. 13 Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam) (citing 14 Morgan II). 15 386 F.3d 376, 381 n.3 (2d Cir. 2004); It is unclear, however, why a hypothetical claim based 16 on ignorance of existing rights is not subsumed by a claim 17 based on ineffective assistance of counsel, which can 18 survive an appeal waiver where the claim concerns the 19 advice [the defendant] received from counsel. 20 United States, 529 F.3d 134, 138 (2d Cir. 2008) (quoting 21 United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 22 1997)). 23 include informing the client of constitutional rights that Parisi v. A lawyer s obligations during plea negotiations 15 1 affect the plea. 2 existing constitutional rights during plea negotiations is 3 in effect arguing that the advice given by his counsel was 4 inadequate or incorrect. 5 one element of an ineffective-assistance claim. 6 (referencing Strickland v. Washington, 466 U.S. 668, 688, 7 693 (1984)). 8 claim readily available, a defendant could litigate the same 9 issue twice. 10 Thus, a defendant claiming ignorance of Such a deficient performance is Id. at 140 Were a separate ignorance of existing rights That concern is particularly acute here. Abramo claims 11 ignorance of existing rights in this appeal, but he has 12 carefully reserved an ineffective-assistance claim for a 13 habeas petition. 14 arguing that the specter of the ineffective-assistance 15 claim should give additional weight to finding the waiver 16 clause unenforceable in this case. 17 that a claim alleging ignorance of existing rights will 18 always be subsumed by a claim of ineffective assistance, but 19 on these facts Abramo s alleged ignorance of his ex post 20 facto rights is relevant only in an ineffective-assistance 21 claim (which is not raised here, and as to which we express 22 no view). 23 Abramo Br. at 28. (And he goes further, Id.) We cannot say Moreover, even assuming that Abramo was not aware of 16 1 the ex post facto issue when he pled guilty, he was well 2 aware of it by the time of sentencing. 3 motion to withdraw his plea and took no step to preserve the 4 issue for appeal. 5 taken into account merely as a sentencing factor under 6 § 3553(a). 7 waived his right to appeal any sentence of eighteen years or 8 less. 9 10 Yet he made no Instead he elected to ask that this be And he made this election knowing that he had Under these circumstances, we hold that the plea waiver is enforceable. 11 12 13 14 CONCLUSION For the foregoing reasons, Abramo s appeal is dismissed. 17
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