On Appeal from the United States District Court for the District of New Jersey. (D.C. Criminal Nos. 92-cr-00171-6, 92-cr-00171-9).
Before: Sloviter, Chief Judge, Lewis and Weis, Circuit Judges.
John Marrone and Michael Paris appeal from sentences imposed following their convictions on RICO and gambling offenses. They were indicted, tried, and convicted with six other defendants, all of whom were associated with the Genovese Crime Family (GCF). Though all defendants appealed, this opinion addresses only certain sentencing issues raised by Marrone and Paris.*fn1 Specifically, Paris argues that a RICO predicate act for which he was previously convicted should not have been used as the basis for added criminal history points. In Marrone's case, the predicate act was not used for criminal history points, but to determine his status as a career offender. He contends this was improper. We will discuss their contentions separately but in one opinion because the legal issues overlap.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. To the extent that defendants challenge the district court's legal interpretation of the Sentencing Guidelines, we exercise plenary review. United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990).
PARIS - CRIMINAL HISTORY POINTS
The indictment charged that Paris was an "associate" of the GCF, subordinate to defendant Salvatore Lombardi, a "caporegime" in the GCF. After a jury trial, Paris was convicted on several counts, including conspiracy to conduct and participate in the conduct of the GCF's affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) (Count 1); conducting and participating in the conduct of the GCF's affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c) (Count 2); and various gambling offenses not at issue in this appeal.
Paris had been previously convicted for a predicate act charged in Count 2. Specifically, the indictment charged Paris with an attempted bribery to which he pled guilty in New York state court on February 26, 1992 and for which he was sentenced to one to three years imprisonment. In convicting Paris on Count 2, the jury found this predicate act proven by special interrogatory.
The district court did not factor the attempted bribery into Paris' base offense level. Instead, the court assessed three criminal history points against Paris under U.S.S.G. § 4A1.1(a), which placed him in criminal history category II. The court then sentenced Paris to 57 months imprisonment running consecutively to his state bribery sentence, followed by three years supervised release, plus a fine of $7500 and a special assessment of $250.
In sentencing a RICO defendant, the district court must apply "the offense level applicable to the underlying racketeering activity" or an offense level of 19, whichever is greater. U.S.S.G. § 2E1.1. The district court found that Paris' underlying conduct, apart from the attempted bribery, resulted in an offense level of 17, and therefore assigned him a base offense level of 19. The court also assessed a three level increase for Paris' managerial and supervisory role, giving him a total offense level of 22.
In arriving at a defendant's criminal history, a district court must add three criminal history points "for each prior sentence of imprisonment" exceeding 13 months. U.S.S.G. § 4A1.1(a). The Guidelines define "prior sentence" as "any sentence previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense." Id. § 4A1.2(a)(1) (emphasis added). The commentary to section 4A1.2 explains that a prior sentence is one "imposed prior to sentencing on the instant offense . . . . A sentence imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense." Id. § 4A1.2, comment. (n.1).
Paris argues that because the bribery was included as a predicate act, it was part of the "instant offense" and therefore should not have been the basis of criminal history points.*fn2 The district court was not persuaded that the bribery conduct should be encompassed for sentencing purposes into the "instant offense" and instead treated it as a prior sentence. It relied on commentary to section 2E1.1 (Racketeering) which discusses when conduct is to be assigned to criminal history rather than to the "instant offense." Under that commentary, conduct charged as part of the "pattern of racketeering activity" that was the subject of an earlier conviction and sentence should be treated as a "prior sentence" under section 4A1.2(a)(1) (referring to instructions for Computing Criminal History) and not as ...