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United States v. Gjeli

United States Court of Appeals, Third Circuit

August 11, 2017

UNITED STATES OF AMERICA
v.
YLLI GJELI, a/k/a Willie Ylli Gjeli, Appellant in No. 15-1892 FATMIR MUSTAFARAJ, a/k/a Tony Fatmir Mustafaraj, Appellant in No. 15-2521

          Submitted Under Third Circuit LAR 34.1(a) June 12, 2017

         On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. No. 2-13-cr-00421-001 & 002 District Judge: Honorable William H. Yohn, Jr.

          Edson A. Bostic Tieffa N. Harper Office of the Federal Public Defender Attorneys for Appellant Ylli Gjeli.

          Alison Brill Office of the Federal Public Defender Richard Coughlin For the District of New Jersey Office of Federal Public Defender Eugene P. Tinari Law Offices of Eugene P. Tinari Attorneys for Appellant Fatmir Mustafaraj.

          Louis D. Lappen Robert A. Zauzmer Salvatore L. Astolfi Katherine E. Driscoll Jerome M. Maiatico Office of the United States Attorney Attorneys for Appellee.

          Before: JORDAN, KRAUSE, Circuit Judges and STEARNS, [*] District Judge.

          OPINION

          JORDAN, Circuit Judge.

         Ylli Gjeli and Fatmir Mustafaraj were tried together and convicted of a number of racketeering-related offenses in connection with a loan sharking and illegal gambling operation in Philadelphia. The District Court entered preliminary orders of forfeiture making both men jointly and severally liable for more than $5 million of the proceeds from the criminal operation. Gjeli and Mustafaraj appeal the forfeiture orders and their sentences. During the pendency of this appeal, the Supreme Court issued its opinion in Honeycutt v. United States, reviewing one of the forfeiture statutes at issue here and holding that joint and several liability is unauthorized. 137 S.Ct. 1626, 1630 (2017). In light of that holding, we will remand this case for the District Court to reconsider the forfeiture orders. As to all other issues on appeal, we will affirm.

         I. Background

         In August 2013, a grand jury in the Eastern District of Pennsylvania returned a 26-count indictment against nine co-defendants, including Gjeli and Mustafaraj. The indictment described a violent criminal enterprise, in operation since at least 2002, that made money for its members through "loan sharking, extortion, illegal gambling, and the collection of unlawful debts[.]"[1] (App. at 106.) Gjeli was a "leader and 'boss' of the enterprise who directed other members in the loan sharking activities and illegal gambling business." (App. at 110.) Mustafaraj was a "leader and 'muscle' in the enterprise who regularly assisted … Gjeli and directed other members" of the enterprise. (Id.)

         The indictment charged all of the co-defendants with being members of a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Gjeli and Mustafaraj were also charged with a number of other crimes stemming from the enterprise. Five of the defendants eventually pled guilty, and four, including Gjeli and Mustafaraj, went to trial. The jury found Gjeli guilty on ten counts and Mustafaraj guilty on twelve.[2]The jury did not, however, convict on all counts. In particular, it acquitted Gjeli and Mustafaraj of making an extortionate extension of credit, which was charged in Count 13, and possession of a firearm in furtherance of a crime of violence, which was charged in Count 26.[3] Those specific counts were based on an incident involving Anthony Rodi, a loan recipient with a gambling problem. Rodi testified at trial that, in January 2011, when he asked Mustafaraj and Gjeli for money, they wielded an axe and threatened that higher-ups in their organization in New York would cut Rodi's arm off if he was unable to pay back the loan. Rodi said that Gjeli then instructed Mustafaraj to "go and get it" (App. at 2445), and Mustafaraj left and returned with a firearm that Gjeli pointed at Rodi's head. A co-defendant, George Markakis, who ran the sports betting side of the RICO enterprise, testified that he had expressed concern about Rodi's mounting debts from football betting in 2012, but that Mustafaraj had assured him "they had [Rodi] under control and not to worry about it." (App. at 3589.) Markakis told the jury that Mustafaraj explained that he (Mustafaraj) and Gjeli had "scared" Rodi with "a machete and a pistol." (App. at 3589.)

         At the sentencing hearings for each man, the District Court announced its conclusions under the United States Sentencing Guidelines, after working through calculations involving the grouping of offenses. The imprisonment range for both turned out to be 135 to 168 months. Gjeli was sentenced to 168 months and Mustafaraj to 147.

         The Indictment had contained notices of forfeiture for the charges of engaging in a racketeering conspiracy, making extortionate credit transactions, illegal gambling, and possessing a firearm in furtherance of a crime of violence. Pursuant to Rule 32.2 of the Federal Rules of Criminal Procedure, those notices alerted Gjeli and Mustafaraj that the government could seek forfeiture at sentencing in the event of conviction on those counts. Following the verdicts, the government filed motions seeking preliminary orders of forfeiture. The District Court granted those motions, and neither Gjeli nor Mustafaraj objected to the entry of the preliminary orders. At each man's sentencing hearing, the District Court made statements regarding forfeiture, but the judgments themselves did not reference the forfeiture orders.

         II. Discussion[4]

         The Defendants raise three issues on appeal. First, they dispute the application of a dangerous weapon enhancement that was used to calculate their Guidelines range. Second, they argue that the calculation of their base offense level under the Guidelines' grouping provisions was incorrect. Finally, they raise a number of challenges to the District Court's entry of the forfeiture orders. We address each of those issues in turn.

         A. Application of Sentencing Enhancement[5]

         Gjeli and Mustafaraj argue that the District Court violated the Constitution by considering at sentencing their use of an axe to threaten Anthony Rodi. In their view, making that incident the basis of a dangerous weapons enhancement to their sentencing range was contrary to the Sixth Amendment.[6] They say that the use of the axe constitutes acquitted conduct because it was one of the acts that formed the basis of Count 26, of which they were found not guilty.[7] Citing Apprendi v. New Jersey, 530 U.S. 466 (2000), they contend that relying on acquitted conduct violates the Sixth Amendment right to trial by jury. Their argument is unavailing.

         In Apprendi, the Supreme Court held that the Sixth Amendment guarantee of a right to trial by jury means that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. The Court has applied Apprendi numerous times, in each case concluding "that the defendant's constitutional rights had been violated because the judge had imposed a sentence greater than the maximum he could have imposed … without the challenged factual finding." Blakely v. Washington, 542 U.S. 296, 303 (2004) (citing Apprendi, 530 U.S. at 491-97, and Ring v. Arizona, 536 U.S. 584, 603-09 (2002)). What has come to be called an Apprendi violation thus occurs whenever an enhanced sentence exceeds the statutory maximum that could have been imposed without application of the enhancement. See Blakely, 542 U.S. at 303 ("Our precedents make clear … that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (emphasis omitted)).

         No Apprendi error occurred here. Neither Gjeli nor Mustafaraj complain that the sentences they received went beyond the statutory maximum to which they were exposed, and clearly their sentences do not.[8] Their argument, rather, is that the District Court's application of the dangerous weapon enhancement for use of the axe was a violation of their Sixth Amendment rights because it relied on acquitted conduct. But that argument ignores that they were never charged with a crime for which the use of an axe was an element. The only count against Gjeli and Mustafaraj that has as an element anything to do with a weapon was Count 26, which charged them with possession of a firearm in furtherance of a crime of violence.[9] True enough, they were acquitted on that charge, and it is also true that the alleged firearm crime happened to have occurred during the same incident in which the axe was used. But that does not mean that the acquittal was about the axe. It was not, because the charge itself was not about the axe. In short, use of the axe was never charged and therefore did not constitute conduct of which they were acquitted.

         Even if the District Court in its discretion had relied on acquitted conduct, though, "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." United States v. Ciavarella, 716 F.3d 705, 735-36 (3d Cir. 2013) (quoting United States v. Watts, 519 U.S. 148, 157 (1997)). That is because "the jury cannot be said to have necessarily rejected any facts when it returns a general verdict of not guilty." Watts, 519 U.S. at 155. The District Court here had ample basis for deciding by a preponderance of the evidence that the dangerous weapon ...


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