                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-2000

United States v. Mannino
Precedential or Non-Precedential:

Docket 98-1748




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Filed May 15, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1748

UNITED STATES OF AMERICA

v.

IGNAZIO ANTONINO MANNINO,
a/k/a Nino
(D.C. No. 89-cr-00003-2)

UNITED STATES OF AMERICA

v.

EMANUELE SALVATORE MANNINO,
a/k/a Sal
(D.C. No. 89-cr-00003-4)

Ignazio Antonino Mannino and
Emanuele Salvatore Mannino,
       Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. Nos. 89-cr-00003-2 and 89-cr-00003-4)
District Judge: Hon. Louis Charles Bechtle

Argued: November 1, 1999

Before: NYGAARD, McKEE, and ROSENN, Circuit Judges

(Filed: May 15, 2000)
       Peter Goldberger, Esq. (argued)
       Law Office of Peter Goldberger
       50 Rittenhouse Place
       Ardmore, PA 19003-2276

        Attorney for Appellants

       Richard P. Barrett, Esq. (argued)
       Robert E. Courtney, III, Esq.
       Office of the United States
        Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

        Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Ignazio Antonino Mannino ("Tony") and Emanuele
Salvatore Mannino ("Sal") appeal the denial of petitions they
filed under 28 U.S.C. S 2255 in which they sought to
vacate, set aside or correct sentences imposed on them
following convictions for charges arising from their
involvement in a heroin distribution conspiracy. We hold
that the defendants' sentencings did not conform to
Amendment 78 of the United States Sentencing Guidelines
or our holding in United States v. Collado, 975 F.2d 985 (3d
Cir. 1992), and we will therefore vacate their sentences and
remand for resentencing consistent with this opinion.

I.

The heroin importation scheme the defendants were
involved in is described in detail in United States v.
Gambino, 728 F.Supp. 1150 (E.D. Pa. 1989), United States
v. Gambino, 926 F.2d 1355 (3d Cir. 1991), cert. denied, 502
U.S. 956 (1991), and in the district court's Memorandum
Opinion denying the defendants' S 2255 petitions in the
instant case. Accordingly, we need only describe the
defendants' involvement to the extent that it is helpful to
our discussion of the issue before us.

                                  2
In January 1989, a federal grand jury indicted eighteen
individuals, including Tony and Sal Mannino, in connection
with a heroin distribution organization that was based in
New York City. Tony and Sal were subsequently tried and
convicted of conspiracy to import and distribute heroin in
violation of 21 U.S.C. SS 963 and 846. Sal Mannino was
also convicted of money laundering in violation of 18 U.S.C.
S 1956(a)(1). On December 6, 1989, Tony was sentenced to
a period of incarceration of 324 months (27 years), and Sal
was sentenced to 216 months (18 years) incarceration the
following day.1 Tony's base offense level under the
Sentencing Guidelines was calculated as 36 in the Pre-
Sentence Investigation Report ("PSI") because his offense
involved at least 30 kilograms of heroin.2 See PSI of Tony
Mannino at P 62. However, that was increased by four
levels because the court found that he was also a"leader"
under the guidelines. See U.S.S.G. S 3B1.1(a). Accordingly,
Tony's total offense level was 40. Since he had no prior
criminal record, his criminal history category was I; yielding
a sentencing range of 292-365 months. Sal's base offense
level in his PSI was also 36, and this was also based upon
evidence that the Gambino conspiracy had distributed
between 10 to 30 kilograms of heroin during the life of the
conspiracy. Sal also had a criminal history category of I,
but he did not receive an upward adjustment. Accordingly,
the Sentencing Guideline table yielded a sentencing range
of 188-235 months imprisonment for Sal.

At sentencing, counsel for both defendants argued that
the sentencing court could not determine the quantity of
drugs each defendant was responsible for under the
guidelines merely by relying upon the quantity of drugs
attributed to the Gambino conspiracy. At Tony's
sentencing, the court responded as follows:

       I think because we have a conspiracy charge, kind of
_________________________________________________________________

1. The court also imposed a term of five years supervised release, a
$25,000 fine, and special assessments in the amount of $100 for Tony
and $150 for Sal.

2. Section 2D1.1(c) provides for a base offense level of 36 when the
quantity of heroin for which a defendant is found accountable falls
between 10 and 30 kilograms.

                               3
        an ongoing offense, I think even as a legal matter, even
        a subsequent involvement in a conspiratorial activity
        can make a person liable under the law.

* * *

        On page 19 [of the PSI], where it . . . states that you
        report that there was no evidence connecting [Tony
        Mannino] with Simone Zito importations. We will not
        change it; but I think your view of it is that, while
        that's all right from the view point of the law of
        conspiracy, it is not all right when we determine
        involvement and participation. . . .

        [Defense counsel]: Exactly, Your Honor.

        [The court]: . . . I think we should preserve your
        position, but the court won't change [the PSI].

App. 100a, 107. A similar exchange occurred at Sal
Mannino's sentencing:

        [The court]: This conspiracy went on for four years
        . . . . [T]he evil of a conspiracy is that it does go on.
        And that's why a person who joins late must, when
        they join late, they are liable for what went on before,
        if they do it knowingly and willfully. . . .

        I don't think the guidelines, Mr. Fitzpatrick . . . . I don't
        think you will change the law of conspiracy so long as
        there are such insidious impacts upon the community
        . . . That's why those who join on the last day are liable
        for the first day and throughout. That's the problem
        here. And he is not charged with handling a kilo of
        this, just the conspiracy. I'm not arguing with you, I'm
        just giving a response to what I think are your good-
        faith beliefs about your expectation to change the law
        of conspiracy.

App. 137-38a, (emphasis added). Both Tony and Salfiled a
direct appeal after the court rejected these arguments and
imposed sentence. However, even though both defense
counsel had preserved the issue of the quantity of heroin
that could be attributed to their respective clients under the
guidelines at sentencing, neither counsel raised the issue
on direct appeal where we affirmed both of the convictions

                                4
and sentences. See United States v. Gambino, 926 F.2d
1355 (3d Cir. 1991).

The defendants subsequently filed petitions pursuant to
28 U.S.C. S 2255, arguing inter alia that the sentencing
court violated their Fifth Amendment due process rights by
misapplying the "relevant conduct" provisions of the United
States Sentencing Guidelines as amended, and that
appellate counsel had been ineffective in failing to raise the
issue on direct appeal. The petitions were referred to a
Magistrate Judge who issued a Report and
Recommendation in which she concluded that the
challenged sentencings failed to conform to the
requirements of Amendment 78 of the Sentencing
Guidelines, and that defendants' prior counsel had been
ineffective in failing to raise the issue on direct appeal. The
Magistrate Judge recommended that the court conduct new
sentencing hearings and make individualized findings
regarding each defendant's respective role in the conspiracy
in order to properly decide how much heroin to attribute to
each of them. However, the court rejected the Report and
Recommendation and denied the defendants' S 2255
petitions.

The court held that the claims were defaulted because
neither defendant had raised that issue on direct appeal,
and neither could demonstrate the cause and prejudice for
that default that was the condition precedent to a decision
on the merits of their S 2255 petitions. See United States v.
Frady, 456 U.S. 152, 168 (1982). The Court also concluded
that the defendants could not establish the prejudice
necessary to a decision on their petitions because the PSIs
and the sentencing transcripts supported the sentencing
court's finding that they were each responsible for at least
10 kilograms of heroin, if not for the entire 30 kilograms set
forth in the counts of conviction. Accordingly, the court
ruled that the petitions of both defendants lacked merit,
and both petitions were dismissed. The Manninos thenfiled
this joint appeal, and a panel of this court granted a
certificate of appealability to review their claim that the

                               5
sentencing court erred in failing to excuse their procedural
default under S 2255, and in applying U.S.S.G.S 1B1.3.3

II.

As noted above, the defendants did not challenge the
sentencing court's attribution of the heroin on direct
appeal. In United States v. Essig, 10 F.3d 968, 977 (3d Cir.
1993), we held that the failure to raise a Sentencing
Guidelines issue on direct appeal results in a waiver of that
issue. Such a procedural default will not be set aside under
S 2255 unless the petitioner can establish cause for the
default and that prejudice resulted from it. Id . at 979.
Accordingly, we must first address the government's
contention that the defendants' failure to raise this issue on
direct appeal precludes our review of the merits of the
petitions.

The Manninos argue that appellate counsel was
ineffective in failing to appeal the trial court's application of
the Sentencing Guidelines, and that such ineffectiveness
satisfies the "cause" prong of Frady. It is, of course, well
established that a successful showing of ineffective
assistance of counsel may satisfy the "cause" prong of a
procedural default inquiry. See Coleman v. Thompson, 501
U.S. 722, 753-54 (1991); Lines v. Larkin, ___ F.3d ___, 2000
WL 291412, at *12 (3d Cir. 2000); and United States v.
Sanders, 165 F.3d 248, 250 (3d Cir. 1999). However, it can
only do so if the ineffectiveness rises to the level of a
constitutional deprivation under Strickland v. Washington,
466 U.S. 668 (1984). Coleman, 501 U.S. at 753. To
establish such a deprivation the defendants mustfirst
demonstrate that "counsel's representation fell below an
objective standard of reasonableness." Strickland, 466 U.S.
at 688.4 If that is established, defendants must then show
_________________________________________________________________

3. We have jurisdiction pursuant to 28 U.S.C.SS 1291 and 2253(a), and
we exercise plenary review. United States v. Lloyd, 188 F.3d 184, 186 (3d
Cir. 1999).
4. Although the Strickland test was initially formulated in the context of
trial counsel's stewardship, it applies with equal force to our analysis
of
the defendants' challenge to the performance of appellate counsel. See
Diggs v. Owens, 833 F.2d 439, 444-45 (3d Cir. 1987); see also McKee v.
United States, 167 F.3d 103, 106 (2d Cir. 1999); United States v. Cook,
45 F.3d 388, 392 (10th Cir. 1995); United States v. Merida, 985 F.2d
198, 202 (5th Cir. 1993).

                               6
that they were prejudiced by counsel's deficient
performance. Id. at 687. This requires that they

demonstrate that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.

Thus, we can not reach the merits of the defendants'
claim here unless they can first establish that they were
denied effective assistance of appellate counsel under
Strickland. However, given the nature of theirS 2255 claim,
it is not possible to resolve the Strickland claim without
first determining if their challenge to the court's application
of the Sentencing Guidelines is meritorious. If it is not
meritorious, the defendants can not successfully argue that
counsel's failure to raise the claim on direct appeal denied
them their constitutional right of representation.
Accordingly, we will first discuss their Strickland claim.
That claim rests upon Amendment 78 of the Sentencing
Guidelines and our decision in United States v. Collado,
975 F.2d 985 (3d Cir. 1992). Amendment 78, which became
effective on November 1, 1989 (one month prior to the
Manninos' sentencing), amended Application Note 1 to
S 1B1.3 and provides in relevant part:

       In the case of criminal activity undertaken in concert
       with others, whether or not charged as a conspiracy,
       the conduct for which the defendant "would be
       otherwise accountable" also includes conduct of others
       in furtherance of the execution of the jointly-
       undertaken criminal activity that was reasonably
       foreseeable by the defendant....Where it is established
       that the conduct was neither within the scope of the
       defendant's agreement, nor was reasonably foreseeable
       in connection with the criminal activity the defendant
       agreed to jointly undertake, such conduct is not
       included in establishing the defendant's offense level
       under this guideline.

In Collado, we set forth the proper analysis for sentencing
courts to use when deciding whether to increase a
defendant's sentence based upon conduct of an accomplice
or co-conspirator. We stated:

       The language of this note indicates that, rather than
       evaluating accomplice attribution in light of the scope

                                7
       of the conspiracy as described in the count of
       conviction and the defendant's awareness of the
       possibility that co-conspirators would distribute
       amounts in addition to those amounts distributed by
       the defendant, courts should look to the defendant's
       role in the conspiracy. Specifically, the note instructs
       courts to assess accomplice attribution by determining
       whether the co-conspirator's conduct was `in
       furtherance of the ... jointly-undertaken ... activity' (as
       opposed to the conspiracy as described in the count of
       conviction), `within the scope of the defendant's
       agreement,' and `reasonably foreseeable in connection
       with the criminal activity the defendant agreed to
       undertake.' U.S.S.G. S 1B1.3, application note 1
       (emphasis added). In our view, this language indicates
       that whether a particular defendant may be held
       accountable for amounts of drugs involved in
       transactions conducted by a co-conspirator depends
       upon the degree of the defendant's involvement in the
       conspiracy and, of course, reasonable foreseeability
       with respect to the conduct of others within the
       conspiracy.

Collado, 975 F.2d at 991-92.

Here, the sentencing court was clearly influenced by the
size and duration of the criminal conspiracy the defendants
were part of and the quantity of drugs charged to the
conspiracy. As noted above, during Sal's sentencing
hearing, the court stated: "This conspiracy went on for four
years. . . . [T]he evil of a conspiracy is that it does go on.
And that's why a person who joins late must know, when
they join late, they are liable for what went on before, if
they do it knowingly and willfully." App. 137a. However, in
Collado, we cautioned:

       in deciding whether accomplice attribution is
       appropriate, it is not enough to merely determine that
       the defendant's criminal activity was substantial.
       Rather, a searching and individualized inquiry into the
       circumstances surrounding each defendant's
       involvement in the conspiracy is critical to ensure that
       the defendant's sentence accurately reflects his or her
       role.

                               8
975 F.2d at 995. We also stated, absent "unusual
circumstances, . . . conduct that occurred before the
defendant entered into an agreement cannot be said to be
in furtherance of or within the scope of that agreement." Id.
at 997.

Counsel for Tony Mannino clearly made this argument to
the sentencing court though he did not specifically refer to
Amendment 78. See N.T. 12/6/89 at 6-7. The court
responded by noting counsel's objection in order to preserve
it for appeal, and then proceeding to make an explicit
finding that Tony Mannino played a leadership role in this
conspiracy. However, the court did not conduct a
"searching and individualized inquiry" as to whether Tony
could have reasonably foreseen that this jointly-undertaken
activity would distribute in excess of 10 kilograms of
heroin. Rather, the court relied upon the total amount of
heroin attributed to the conspiracy in the PSI to arrive at
an offense level of 36. See PSI of Tony Mannino at P 62. As
the Magistrate Judge correctly concluded, this approach
falls short of that required by Amendment 78. Such an
error is all the more significant where, as here, a defendant
faces possible attribution of a significant amount of heroin
that was concededly distributed before he joined the
conspiracy. Id. at P 15; Addendum to PSI at p. 18; N.T.
12/6/89 at 4.

Similarly, the transcript of Sal's sentencing establishes
that the sentencing court also failed to conduct a proper
inquiry into the drugs that should be attributed to Sal.
Sal's attorney specifically called the court's attention to the
change occasioned by Amendment 78. See N.T. 12/7/89 at
13-14. The court responded to what it viewed as counsel's
"good-faith beliefs about [counsel's] expectation to change
the law of conspiracy," N.T. 12/7/89 at 17, by reiterating
the evils of conspiracies and relying upon the maxim that
"those who join on the last day are liable for the first day
and throughout." Id. However, in Collado we stated our
disagreement with those courts that viewed accomplice
attribution under the guidelines as being coextensive with
accomplice liability under the law of conspiracy. We noted
that the Circuit Courts of Appeals were not in agreement as
to the scope of accomplice attribution under the guidelines,

                               9
but stated: "[w]e need not take a position regarding the
proper interpretation of conspiracy law, for in our view, the
relevant conduct provision [of the guidelines] is not
coextensive with conspiracy law." 975 F.2d at 997
(emphasis added).

Here, the sentencing court found that Sal was involved in
the communication aspect of the conspiracy, which it
characterized as "the heart of the distribution conspiracy."
However, there was no specific inquiry to determine
whether, given Sal's individual role, he could reasonably
foresee that the conspiracy would distribute the quantity of
heroin attributed to him at sentencing and whether the
quantity allocated to him was part of his undertaking.
Instead, the court relied upon the law of conspiracy to
conclude that Sal's sentence should reflect the quantity of
drugs set forth in the count of conviction as stated in the
PSI. Thus, the court arrived at the base offense level of 36
and the corresponding sentencing range of 216 months.

Similarly, paragraph 61 of Sal's PSI states, in relevant
part: "Section 1B1.3 (relevant conduct) allows us to
consider all the behavior in furtherance of this conspiracy.
The government reported that the Gambino conspiracy
distributed more than 10 kilograms of heroin throughout
the life of the conspiracy. The base offense level is therefore
36." That conclusion is inconsistent with Amendment 78
and the pronouncements of Collado, and the court therefore
erred when it relied upon that erroneous methodology to
calculate the appropriate sentence for Tony and Sal
Mannino.5 Although the attorneys for both defendants
raised this point at sentencing, as noted above, neither
pursued that issue on appeal, and the Manninos now
contend that the omission denied them the effective
assistance of counsel guaranteed by the Constitution. We
agree.

This is not a situation in which counsel failed to
anticipate a change in the law, see Sistrunk v. Vaughn, 96
F.3d 666, 670-71 (3d Cir. 1996), quoting Government of the
Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.
_________________________________________________________________

5. Both PSIs were apparently prepared before Amendment 78 was
adopted by the Sentencing Commission.

                               10
1989)("there is no general duty on the part of defense
counsel to anticipate changes in the law"), because both
attorneys were aware of the issue and raised it at
sentencing. Thereafter, in support of the petitions
subsequently filed under S 2255, the defendants submitted
sworn affidavits from both trial counsel in support of their
assertion that counsel's failure to raise this claim on direct
appeal was not a tactical or strategic decision. The
government did not choose to cross-examine trial counsel
in opposing the defendants' 2255 petitions. Rather, the
prosecutor stipulated to their affidavits. Although neither
trial attorney had a specific recollection of their reasons for
not pursuing this argument on appeal, both swore that his
decision was not a strategic or tactical one. Attorney
Carnesi, counsel for Tony, could not remember discussing
any sentencing issues with his colleague (Attorney Russo)
when they were preparing Tony's direct appeal. In the brief
he filed in this appeal, current counsel for the defendants
states, "the court's docket shows that defense counsel did
not even order and did not have a sentencing transcript
during the time they were working on the appeal."
Appellants' Br. at 31; App. 6a, 13a. Attorney Fitzpatrick
could not "think of any reason why [he] would not have
raised on appeal an issue of such potential importance that
had been preserved at sentencing, except oversight or
misjudgment." App. 179a.

In denying relief and rejecting the Recommendation and
Report of the Magistrate Judge, the court stated that both
defendants were

       represented by excellent attorneys who zealously
       represented them at every level of the proceedings and
       raised every feasible defense. The court cannot
       conclude that the failure to raise the issue on direct
       appeal was an oversight. Even if the court did find that
       it was oversight rather than strategy, that failure does
       not meet the "objectively unreasonable standard."

Dist. Ct. Memorandum at 17. There is nothing in the record
to support this conclusion. Morever, given the nature of the
conspiracy charged in the instant indictment and the
severity of the Sentencing Guidelines, we are unable to
imagine any strategic or tactical justification for failing to

                                11
pursue an argument of such obvious merit and importance
as the proper method for attributing drugs to a defendant
being sentenced under U.S.S.G. S 1B1.3. The only plausible
explanation is that counsel simply did not have sufficient
space in their appellate briefs and dropped this claim even
though it had significant merit. However, assuming
arguendo that would justify abandoning this argument after
it had been preserved at sentencing, current counsel
represents (without contradiction) that such was clearly not
the case. In the brief filed in this appeal, current counsel
represents that the briefs filed in the direct appeals of both
Tony and Sal were well under the page limitation and that
appellate counsel could certainly have included a claim
based upon the misapplication of U.S.S.G. S 1B1.3. See
Appellants' Br. at 30-31.

Therefore, we conclude that the only possible explanation
for such an omission is the very reason that the trial
attorneys gave. They simply overlooked it, or they
misjudged. Though the district court rejected this
explanation because of the skill and experience of defense
counsel, it is the only explanation consistent with this
record. Clearly, no defense attorney is infallible no matter
how experienced he or she may be; and zealous
representation, even by an experienced attorney, does not
displace the possibility of human error. Therefore, we
conclude that the court's finding that the omission was
deliberate is clearly erroneous. See United States v.
Monostra, 125 F.3d 183, 188 (3d Cir. 1997). 6

As the government correctly points out, the court was not
compelled to credit the trial counsel's affidavits if there
exist "sound reasons" for not doing so. See Appellee's Brief
at 14 (citing Anderson v. City of Bessemer, 470 U.S. 564,
573-74 (1985)). However, we can find no such "sound
reasons" on the record here, and the government has not
_________________________________________________________________

6. The court also speculates that "Counsel could reasonably have
decided that they could not prevail on the sentencing issue and that
raising it in the appeal would be futile." Dist. Ct. Memorandum at 18.
However, there is nothing in the record to support that speculation, and
it is difficult to imagine how attorneys with the expertise and experience
of trial counsel here could reach such a conclusion given the text of
Amendment 78.

                               12
been able to suggest any. The court rejected counsel's
affidavits in a footnote stating: "[g]iven counsel's familiarity
with the case and the issues, the court does notfind these
affidavits credible." Dist. Ct. Memorandum at 16 n.14. The
court could have held an evidentiary hearing if it doubted
the veracity of counsel's affidavits, see United States v. Day,
969 F.2d 39, 41 (3d Cir. 1992), and/or the government
could have called the affiants as witnesses in an effort to
impeach their sworn statements. See Rule 8 of the Rules
Governing Section 2255 Proceedings.7 That was not done,
and we are left only with their unchallenged (and facially
logical and consistent) explanation of their omission.

We " `must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.' " Sistrunk v.
Vaughn, 96 F.3d 666, 670 (3d Cir. 1996)(quoting
Strickland, 466 U.S. at 690). Given the affidavits submitted
by counsel and stipulated to by the government, the fact
that the sentencing issues were raised at sentencing and
preserved for appeal and that no other sentencing issue
was raised on appeal, there is simply no rational basis to
believe that counsel's failure to argue the relevant conduct
issue on appeal was a strategic choice. See Barnett v.
Hargett, 174 F.3d 1128, 1135 (10th Cir. 1999)(deficiency of
appellate counsel can be established by showing that
counsel failed to raise an issue that was obvious from the
trial record); United States v. Cook, 45 F.3d 388, 395 (10th
Cir. 1995)(same in S 2255 context); United States v.
Headley, 923 F.2d 1079, 1084 (3d Cir. 1991)(failure to
raise obvious and potentially successful sentencing
guidelines issue at sentencing cannot be said to have been
a strategic choice but, rather, amounts to ineffective
assistance).
_________________________________________________________________

7. We do not suggest that the district court had to accept the averments
contained in the affidavits in the absence of the affiants appearing in
court. However where, as here, there is nothing on the record to
contradict the averments and where the averments contain no internal
inconsistency, a court must have some basis for rejecting the sworn
testimony of otherwise credible affiants, especially where those affiants
are officers of the court.

                               13
However, as noted above, the defendants must do more
than show that counsel's failure to pursue the issue of their
sentencing on direct appeal was not reasonable. Strickland
requires that the defendants demonstrate that they were
prejudiced by counsel's failure to pursue this meritorious
claim.

III.

The district court held that defendants must show more
than that their sentences would have been vacated and the
case remanded for resentencing in order for them to
establish prejudice under Strickland and prevail on their
S 2255 petitions. The court held that the defendants also
had to establish a reasonable probability that the outcome
of that resentencing would have been "favorably different."
Dist. Ct. Memorandum at 18. The court then noted that the
defendants were "important actors that agreed to
participate and did knowingly participate, in a conspiracy
that had as its object the importation from Italy and
distribution within the United States, of a seemingly
limitless supply of heroin." Id. at 19. The court stated: "[i]f
the court were to resentence Petitioners, . . . the court
would be guided by the same sentencing criteria in
resentencing Petitioners to the very sentences imposed on
December 6 and 7, 1989. Therefore, under the Strickland
test, the prejudice prong cannot be met and Petitioners'
ineffective assistance of counsel claim fails." Id. at 20-21.
However, the court applied the wrong test. The test for
prejudice under Strickland is not whether petitioners would
likely prevail upon remand, but whether we would have
likely reversed and ordered a remand had the issue been
raised on direct appeal. See, e.g., Barnett, 174 F.3d at 1135
(prejudice resulting from appellate counsel's omission of
issue on appeal established where inclusion of issue
"probably would have resulted in reversal"); McKee, 167
F.3d at 108 (had counsel made proper challenge on direct
appeal, petitioner would have been granted a new trial);
Government of Virgin Islands v. Forte, 865 F.2d 59, 64-65
(3d Cir. 1989).

In Forte, we considered a claim of ineffective assistance of
counsel based upon trial counsel's failure to raise an

                               14
objection to purportedly racially motivated peremptory jury
strikes. Batson v. Kentucky, 476 U.S. 79 (1986), was
pending before the Supreme Court, but defense counsel
failed to object despite a specific request from defendant
and a consulting attorney that he do so. Forte was
convicted and thereafter challenged his trial attorney's
failure to raise the Batson claim. After noting that Forte
would have been successful in having the matter remanded
on direct appeal had the Batson issue been preserved at
trial, we applied Strickland and concluded that the trial
attorney's performance had been unreasonable and had
prejudiced Forte by denying him a just result on appeal.
Forte, 865 F.2d at 64-65. We did not require Forte to show
that he would have prevailed on the Batson issue following
remand. Thus, the prejudice prong of a Strickland analysis
is satisfied if there is a reasonable probability that the
result of the appeal would have been different had
counsel's stewardship not fallen below the required
standard.

For the reasons set forth in our discussion regarding the
sentencing proceedings of the Mannino brothers, we agree
with the Magistrate Judge's conclusion that there is a
reasonable probability that, had counsel raised an
Amendment 78 claim on direct appeal, we would have
vacated the defendants' sentences and remanded for the
kind of analysis required under Collado. The defendants
can therefore establish ineffective assistance of counsel
under Strickland, and they have therefore demonstrated the
cause and prejudice that will excuse the procedural default
that resulted from counsel's failure to challenge their
sentencings on direct appeal. See, e.g. , Murray v. Carrier,
477 U.S. 478, 488 (1986)(counsel's errors that rise to
constitutional ineffectiveness under the Strickland standard
constitute cause for procedural default); Essig , 10 F.3d at
979.8

Our analytical waters are muddied however, because the
defendants must demonstrate prejudice under Strickland to
_________________________________________________________________

8. Given this determination, it is unnecessary for us to consider the
additional claims raised by defendants as cause for their failure to
pursue the Sentencing Guidelines issue on direct appeal.

                               15
establish cause for procedural default, and they must also
establish prejudice as part of the "cause and prejudice"
analysis under Frady. The latter requires defendants to
show that the district court's attribution of drugs was to
their "actual and substantial disadvantage." Frady, 456
U.S. at 170. As noted above, the district court concluded
that the defendants were not prejudiced because it would
impose the very same sentences if defendants were
resentenced. The court reasoned, "[p]etitioners agree[d] to
participate in a far-reaching conspiracy that they knew had
as its object the importation and distribution of heroin in
quantities that easily exceeded 10 kilograms."
Memorandum Opinion at 26. We have already determined
that defendants' sentencing proceedings fell short of the
requirements of Collado; thus, we need not revisit that
issue here. Rather, we will proceed to determine whether
defendants can establish that the court's conflation of the
law of conspiracy and principles of accomplice attribution
under the guidelines worked to their "actual and
substantial disadvantage." Despite the court's
pronouncement that the defendants would receive the same
sentence on remand based upon their involvement, we
conclude that the defendants have established the
necessary prejudice under Frady.

Absent waiver (which is not implicated here), a defendant
has an unqualified right to be present at sentencing, see
Rules 32(c), and 43(a) Fed. R. Crim. P., and this extends to
resentencing upon remand. United States v. Moree , 928
F.2d 654 (5th Cir. 1991). See also United States v. Taylor,
11 F.3d 149 (11th Cir. 1994). We recently described Rule
43's requirement that a defendant be present at the
imposition of sentence as a "fundamental procedural
guarantee that places the defendant before the judge at a
culminating moment of the criminal judicial process."
United States v. Faulks, 201 F.3d 208, 211 (3d Cir. 2000).
Additionally, it is now well established that a due process
violation may result from the method by which the sentence
was determined, and not just from the ultimate sentence
imposed. See United States ex rel. Jackson v. Myers, 374
F.2d 707, 711 n.11 (3d Cir. 1967).

Obviously, a criminal defendant must be afforded due
process at sentencing. See United States v. Palma, 760 F.2d

                               16
475, 477 (3d Cir. 1985)(citing Townsend v. Burke , 334 U.S.
736 (1948)). Moreover, it is beyond dispute that a
sentencing calculation may violate the due process clause
of the Fifth Amendment if there is a possibility that the
sentence imposed may have been based on legal and/or
factual error. See, e.g., United States v. Levy, 865 F.2d 551,
560 (3d Cir. 1989)(en banc)(resentencing required where
there is "unacceptable risk" that two of defendant's
sentences are the result of misconception concerning their
legal effect); United States v. Katzin, 824 F.2d 234, 240 (3d
Cir. 1987)(citing United States v. Tucker, 404 U.S. 443
(1972)("sentencing on the basis of materially untrue
assumptions violates due process"); Moore v. United States,
571 F.2d 179, 183-84 and n.7 (3d Cir. 1978)(due process
may require resentencing when information on which
sentencing court relied in PSI is mistaken or unreliable).
Here, the district court's sentence was based upon the
Probation Department's blanket conclusion that "Section
1B1.3 (relevant conduct) allows [it] to consider all the
behavior in furtherance of this conspiracy." However,
Collado requires a finding that the co-conspirators' conduct
was in furtherance of the jointly-undertaken activity, within
the scope of each defendant's agreements, and reasonably
foreseeable in connection with the criminal activity each of
the Manninos agreed to undertake. Collado, 975 F.2d at
991-92. Denying the defendants' request for resentencing
without such an inquiry based only upon the district
court's declaration that it would impose the very same
sentence upon remand would be tantamount to allowing
the defendants to be sentenced in absentia.

Despite the district court's belief that defendants would
each receive the same sentence as a result of their
individual conduct, defense counsel must have an
opportunity to force the government to meet its burden of
proof as to any drugs attributed to either defendant based
upon someone else's conduct. Collado, supra. See also
United States v. Paulino, 996 F.2d 1541, 1545 (3d Cir.
1993). Although the government asserts that the record
clearly demonstrates that each defendant was responsible
for at least 10 kilograms of heroin, and probably far more,
see Appellee's Br. at 22-4, counsel for the defendants
purports to "give[ ] the benefit of every reasonable doubt to

                               17
the court's analysis. . ." while rebutting a substantial
quantity of the drugs attributed to the defendants in the
PSI. See Appellants' Br. at 19-24.

For example, the district court attributed to each
defendant six kilograms of heroin that were removed from
couriers at Italian and United States airports in March of
1986. However, this heroin was personally placed on the
couriers by a person named "Allegra." The district court
allowed an amendment to the PSI, to reflect that there was
no evidence that the Manninos were participating in the
heroin importation operation in March 1986. PSIs atPP 14
and 15. Similarly, although not specifically included in the
court's calculation of 10-plus kilograms, there was no
finding as to how much of the eighty kilograms of heroin
attributed to "Ricupa" was imported and distributed after
defendants joined the conspiracy in 1986. Moreover, the
indictment referred to heroin that was exchanged for the
hundreds of kilograms of cocaine from Columbia. The PSIs
attribute this to Tony and Sal merely by concluding that
this exchange "elucidated the scope and breadth of the
conspiracy." Dist. Ct. Memorandum and Opinion at 26-27.
The testimony of witness Cuffaro regarding this 570
kilogram cocaine transaction was challenged at Tony
Mannino's sentencing and the district court directed the
probation officer to correct paragraph 25 of the PSI to read
that "a government witness testified that he was told that
Mr. Mannino and Simone Zito had assisted [one the bosses
involved in the transaction]." Id. at 27 n.22 (emphasis
added).

"Information used as a basis for sentencing under the
Guidelines must have `sufficient indicia of reliability to
support its probable accuracy.' " United States v. Miele, 989
F.2d 659, 663 (3d Cir. 1993)(quoting U.S.S.G. S 6A1.3(a)).
The district court must, therefore, afford Tony and Sal
Mannino a meaningful opportunity to challenge whether
the quantity of heroin ultimately attributed to each was
reasonably foreseeable by each so that neither defendant
will be sentenced for drugs that should not be attributed to
him under the guidelines. The underlying S 2255
proceeding did not afford defendants this opportunity.
Accordingly, the district court's assertion that it will impose

                               18
the same sentence upon remand does not negate afinding
of prejudice under Frady, and it, therefore, does not negate
the necessity of a remand.

We do not suggest, however, that the district court is
necessarily precluded from reimposing the same sentence
on each of these defendants following remand if the court
conducts the required searching and individualized inquiry
as to both defendants and concludes that the sentences
that were originally imposed were appropriate under
Amendment 78 as amplified by Collado. However, absent
such an inquiry, the sentences previously imposed can not
stand.

IV. Conclusion

For the foregoing reasons, we will vacate the court's
opinion denying defendants' S 2255 petitions and remand
this matter for further proceedings consistent with this
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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