United States v. Bertucci, No. 14-3570 (8th Cir. 2015)
Annotate this CaseBertucci pleaded guilty to shooting and killing a bald eagle and a hawk, 16 U.S.C. 668(a), 703, and 707. Bertucci had a criminal history score of two; his offense level was 10, with a four-level enhancement under U.S.S.G. 2Q2.1(b)(3)(A)(ii) and 2B1.1(b)(1)(C) based on "loss" amounts for the birds that exceeded $10,000 but did not exceed $30,000 and a two-level enhancement under 2Q2.1(b)(1)(B) for a "pattern of similar violations" because Bertucci was convicted in 2009 for possession of bald eagle feathers. There were several paragraphs concerning previous assaults that Bertucci had allegedly committed. Bertucci argued that the court had adopted a $2,000 valuation for bald eagles in the 2009 prosecutions of him and his brother and that the allegations of assault were baseless. The court denied Bertucci's objections and sentenced him to eight months' imprisonment with a special condition of supervised release that required Bertucci to "successfully complete, and pay for any diagnostic evaluations and treatment or counseling programs for anger management." The court imposed a "financial obligation" on Bertucci: $5000.00 for the eagle and $1500.00 for the hawk. The Eighth Circuit vacated the sentence, stating that the court failed to establish the basis for requiring counseling; that the financial obligation constituted restitution; and that the valuation was not justified.
Court Description: Smith, Author, with Wollman and Benton, Circuit Judges] Criminal case - Sentencing. In a prosecution for killing a bald eagle and a rough-legged hawk, the court erred in setting market values for the birds as the valuations provided by the government's witness did not constitute sufficiently reliable evidence to justify new and dramatically increased eagle and hawk values; the sentencing record indicated that the $6,500 "financial obligation" the court imposed was not a fine but restitution, which the court lacked authority to order in the context of the specific charges in the case; on remand the court may consider whether to order restitution as a condition of defendant's supervised release; the presentence report failed to establish a factual or evidentiary basis for a special condition of supervision requiring defendant to undergo anger-management counseling and the condition is vacated as it does not address concerns of crime deterrence, public safety or defendant's correctional needs.
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