                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             JUNE 15 2007
                              No. 05-16818                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                    D. C. Docket No. 04-20261-CR-ASG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ARMAND A. DEANGELIS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (June 15, 2007)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Armand DeAngelis appeals his combined sentence of 97 months’
incarceration and restitution in the amount of $1,296,701.50, imposed after he pled

guilty to one count of mail fraud and one count of conspiracy to commit mail

fraud. DeAngelis’s fraud consisted of misrepresenting to investors the quality of

the rare gold coins that he convinced them to purchase at inflated prices from him

through three corporations which he and his wife controlled.

       On appeal, DeAngelis argues that the district court: (1) erred by imposing a

two-level enhancement for his leadership role in the offense, (2) erred by granting

the government’s motion for a downward departure without reducing his sentence

below the Guideline range, (3) violated his constitutional rights to due process and

to confront witnesses by not allowing him to cross-examine victims giving impact

testimony, (4) erred by granting him an upward departure for creating a substantial

risk of non-monetary harm, and (5) had no jurisdiction to impose an order of

restitution.

       In its response brief, the government argues that the plea agreement in this

case contained a sentencing appeal waiver that precludes DeAngelis from

challenging any issue other than the upward departure. Because each of his claims

can be denied on their merits, we need not consider the scope of the appeal waiver

in the plea agreement.




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                              I. Standards of Review

      We review the district court’s factual findings regarding a defendant’s role

in the offense for clear error. United States v. Gupta, 463 F.3d 1182, 1197 (11th

Cir. 2006), petition for cert. filed, (U.S. Apr. 16, 2007) (No. 06-1388). Generally,

we do not review the extent of a downward departure for substantial assistance,

however, we will review de novo a challenge to a ruling on a substantial assistance

motion on the ground that the court misapplied U.S.S.G. § 5K1.1. United States v.

Luiz, 102 F.3d 466, 468 (11th Cir. 1996). We review the scope of a defendant’s

constitutional rights de novo when the issue is preserved in the district court.

United States v. Cantellano, 430 F.3d 1142, 1144 (11th Cir. 2005), cert. denied,

126 S.Ct. 1604 (2006). We review the district court’s application of the Guidelines

to the facts de novo and the court’s factual findings for clear error. United States v.

Simmons, 368 F.3d 1335, 1338 (11th Cir. 2004). An objection to a restitution

order raised for the first time on appeal is reviewed for plain error. Cani v. United

States, 331 F.3d 1210, 1212 (11th Cir. 2003).

                               II. Role Enhancement

      DeAngelis argues that because he was the only participant, the district court

clearly erred by imposing a two-level enhancement for a leadership role in the

offense. He contends that he cannot receive a leadership enhancement because the



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only other participants in the scheme were alter-ego corporations over which he

held exclusive control.

      The Sentencing Guidelines provide for an offense level enhancement of two

levels if the defendant was an organizer, leader, manager, or supervisor of one or

more other participants in any criminal activity. U.S.S.G. § 3B1.1(c) and

comment. (n.2). A participant “is a person who is criminally responsible for the

commission of the offense, but need not have been convicted,” however, “[a]

person who is not criminally responsible for the commission of the offense . . . is

not a participant.” U.S.S.G. § 3B1.1, comment. (n.1).

      Upon review of the record, there is no reversible error in the finding that

DeAngelis served a leadership role in the offense. DeAngelis’s version of the facts

does not comport with the facts before the court. See United States v. Smith, 480

F.3d 1277, 1281 (11th Cir. 2007) (holding that where a defendant does not object

to facts contained in the government’s proffer during a plea colloquy or statements

in a presentence investigation report (“PSI”), those facts are deemed to have been

admissions of fact by the defendant). DeAngelis pled guilty to conspiring with

three corporations, one of which, according to the final version of the PSI, was

headed by his wife. Additionally, during the plea colloquy, the government

explained that it would prove that DeAngelis instructed an individual on how he



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wanted the coins fraudulently graded. These uncontested statements implicating

others as un-charged, but criminally responsible participants in the offense,

provided a sufficient basis for the district court to apply an enhancement for

DeAngelis’s leadership role in the offense.

                            III. Downward Departure

      DeAngelis argues that even though the district court “purportedly” granted

the government’s motion for a downward departure, the district court erroneously

failed to give DeAngelis proper credit for his assistance to the government because

the sentence imposed was in excess of the Guideline range.

      The Sentencing Guidelines provide that “[u]pon motion of the government

stating that the defendant has provided substantial assistance in the investigation or

prosecution of another person who has committed an offense, the district court may

depart from the guidelines.” U.S.S.G. § 5K1.1. To arrive at the appropriate

reduction, the court may consider, amongst other factors related to the defendant’s

substantial assistance, “the significance and usefulness of the defendant’s

assistance,” “the truthfulness, completeness, and reliability of any information or

testimony provided by the defendant,” “the nature and extent of the defendant’s

assistance,” “any injury suffered, or any danger or risk of injury to the defendant or

his family resulting from his assistance,” and “the timeliness of the defendant’s



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assistance.” Luiz, 102 F.3d at 469; U.S.S.G. § 5K1.1(a)(1-5).

      DeAngelis does not contest that the court misapplied the guideline provision

by considering factors unrelated to his substantial assistance. Instead he argues

that the court’s decision to grant the government’s motion for a downward

departure was ineffective because it did not result in a sentence below the

Guideline range. We may not consider such an argument regarding the extent of

the downward departure.

                   IV. Confrontation Clause and Due Process

      DeAngelis argues that the district court violated his rights under the

Confrontation Clause of the Sixth Amendment and the Due Process Clause of the

Fifth Amendment when it considered unsworn statements made by alleged victims

without allowing him the opportunity to cross-examine.

      The Sixth Amendment protects the right of the accused “to be confronted

with the witnesses against him” “[i]n all criminal prosecutions.” U.S. Const.

amend. VI. The right to confront witnesses, however, does not extend to all

aspects of criminal law and we have held that “[t]he right to confrontation is not a

sentencing right.” Cantellano, 430 F.3d at 1146. In Cantellano, we approved the

district court’s use of hearsay and documentary evidence at a sentencing hearing to

prove a defendant’s prior convictions. Id.



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      DeAngelis does not offer any compelling reason why victim impact

testimony should be exempted from the general rule that the defendant has no right

to confront witnesses at sentencing. In fact, he acknowledges that he has no such

right. Thus, there is no merit to DeAngelis’s argument that the district court

violated the Confrontation Clause by not permitting him to cross-examine the

victims of his crimes at sentencing. To the extent that DeAngelis argues that he

was denied due process because the victim impact statements were unreliable

without cross-examination, that argument is connected to his lack of confrontation

argument and is equally without merit.

      DeAngelis’s due process rights are guaranteed by the Fifth Amendment,

which provides that “[n]o person shall . . . be deprived of life, liberty, or property

without due process of law.” U.S. Const. amend. V. During a sentencing

proceeding, due process allows a court to consider any information, even if it

would not be admissible under the evidentiary rules, “provided that the evidence

has sufficient indicia of reliability, the court makes explicit findings of fact as to

credibility, and the defendant has an opportunity to rebut the evidence.” United

States v. Baker, 432 F.3d 1189, 1253 (11th Cir. 2005), cert. denied, 126 S.Ct. 1809

(2006).

      DeAngelis does not challenge the underlying basis for the court’s



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determination that the statements were sufficiently reliable. To the extent that he

argues that the court did not make a reliability determination at all, that allegation

does not appear to have a basis in the record. The record contains letters from

many of the victims and the court heard victim impact testimonials during two

presentence hearings. The record also contains memorandums and documents

DeAngelis filed in response to the victims’ statements. The court expressed that it

found the victims’ statements reliable and noted that DeAngelis responded to the

statements. The district court explained that it found the victims credible because

the victims provided a common description of DeAngelis’ modus operandi, and the

statements were consistent with documents submitted by DeAngelis, the civil

pleadings in a related case, and the conduct admitted by DeAngelis in the plea

colloquy. Thus, the court did not infringe upon his right to due process because

DeAngelis had a chance to respond to the statements, the court found “sufficient

indicia of reliability,” and made explicit findings regarding credibility.

                               V. Upward Departure

      DeAngelis argues that it was inappropriate for the district court to depart

upward from the Guideline range, based on a finding that his conduct “caused or

risked substantial non-monetary harm,” such as “psychological harm or severe

emotional trauma,” absent evidence that the victims needed psychological



                                           8
treatment or suffered from anguish that exceeded the “embarrassment and distrust

[that] was no different than that experienced by any other heartland fraud victims.”

      We have held that “[t]he Supreme Court and this Court have long

recognized that it is not necessary to decide guidelines issues or remand cases for

new sentence proceedings where the guidelines error, if any, did not affect the

sentence.” United States v. Williams, 431 F.3d 767, 775 (11th Cir. 2005). In a

situation where the district court would have imposed the same sentence, any

potential error does not affect the sentence. United States v. Kendrick, 22 F.3d

1066, 1068 (11th Cir. 1994). We find that to be the case here.

       The district court granted DeAngelis an upward departure premised upon

findings that: (1) his “conduct was unusually heinous, cruel, brutal or degrading to

the victim,” pursuant to U.S.S.G. § 5K2.8, and (2) the offense level “substantially

understates the seriousness of the offense,” because his conduct “caused or risked

substantial non-monetary harm,” such as “psychological harm, or severe emotional

trauma,” “created a risk of substantial loss” beyond that calculated as the amount

of loss, and “endangered the solvency or financial security of one or more

victims,” pursuant to U.S.S.G. § 2B1.1 comment. (n.15(A)(ii, iv, v). The court

based its decision “on each of these factors individually and in combination.” On

appeal, DeAngelis argues that the court erred in regard to finding psychological



                                          9
harm or emotional trauma, but he does not contest the court’s findings regarding

any of the other grounds for an upward departure. He thereby abandons any

arguments regarding the other grounds for the upward departure. See United

States v. Bordon, 421 F.3d 1202, 1206 n.1 (11th Cir. 2005) (noting that issues not

raised in the briefs are abandoned). Thus, even if the court improperly determined

that DeAngelis “caused or risked . . . psychological harm, or severe emotional

trauma,” which we do not determine, we still affirm the upward departure because

the district court made clear that the other factors on which it based the upward

departure were present in such a degree to independently support a departure.

                                   VI. Restitution

      DeAngelis argues that the restitution order imposed upon him by the district

court is invalid because it was issued in violation of the limitation period of 90

days in 18 U.S.C. § 3664. The chronology is undisputed – the court orally

pronounced a sentence for DeAngelis on November 18, 2005, held a hearing

during which an oral restitution order was made on January 18, 2006, and entered a

final judgment on March 16. Thus, the 90-day limitation period ended between the

date that the court orally stated the amount of restitution due and the date that it

entered a final judgment memorializing that same amount.

      Under the plain error standard of review, we may exercise discretion to



                                           10
correct an error that is plain and affects substantial rights, if the error “serious

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. King, 414 F.3d 1329, 1330 (11th Cir. 2005).

       In instances in which “the victim’s losses are not ascertainable” prior to

sentencing, upon notice from either the prosecuting attorney or the probation

office, “the court shall set a date for the final determination of victim’s losses, not

to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5). “‘Sentencing’ means

the oral announcement of the sentence.” Fed.R.Crim.P. 35(c). We have held that a

judgment of conviction becomes final by operation of law after 90 days and any

order of restitution imposed after that date is unenforceable. United States v.

Kapelushnik, 306 F.3d 1090, 1093-94 (11th Cir. 2002).

       We need not decide whether the limitation period concludes when the court

orally announces a restitution order, or if it does not end until a restitution order is

entered on the docket because, in any event, DeAngelis is unable to prove that his

substantial rights were affected.

       Courts are required to impose restitution on defendants convicted of “any

offense in which an identifiable victim or victims has suffered a . . . pecuniary

loss.” 18 U.S.C. § 3663A(a)(1) and (c)(1)(B). In compliance with that statutory

mandate, the district court orally set the terms of restitution at a hearing before the



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limitation period elapsed. Thus, DeAngelis’s substantial rights were not affected

by the court’s subsequent delay in entering on the docket a final judgment with the

same restitution amount.

      For the reasons stated herein, DeAngelis’s combined sentence is,

      AFFIRMED.




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