                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-1410
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

ANTHONY R. DOTE,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 00-CR-342-1—James B. Moran, Judge.
                          ____________
    ARGUED DECEMBER 4, 2002—DECIDED MAY 13, 2003
                   ____________


  Before FLAUM, Chief Judge, and COFFEY and WILLIAMS,
Circuit Judges.
  COFFEY, Circuit Judge. On April 27, 2000, Anthony R.
Dote was indicted on charges of engaging in a racketeer-
ing conspiracy, in violation of 18 U.S.C. § 1962(d), operat-
ing an illegal gambling business, in violation of 18 U.S.C.
§ 1955, and engaging in interstate travel in aid of a racke-
teering enterprise, in violation of 18 U.S.C. § 1952. He
pled guilty to all counts in the indictment. At sentencing,
the court concluded that it lacked authority to enter a
downward departure from the Sentencing Guidelines
range (51 to 63 months) and sentenced Dote to 51 months
in prison, as well as three years of supervised release. We
affirm.
2                                               No. 02-1410

I.   Background
  On November 17, 1994, a federal grand jury indicted
Dote on charges of illegal bookmaking and RICO violations
that occurred between 1978 and 1992. The November
1994 indictment (the “First Indictment”) alleged that
Defendant and two others, Marco Damico and Robert M.
Abbinati, perpetrated racketeering and gambling crimes
through an organization that will herein be referred to as
the “Dote-Damico Enterprise.” Dote pled guilty to the
charges set forth in the Indictment, and, on September 13,
1996, was sentenced by Judge Blanche M. Manning to 51
months in prison.
  Unbeknownst to the court, at the time of Dote’s Septem-
ber 1996 sentencing, Dote had been participating in a
second illegal gambling business, the “Dote-Mazza Enter-
prise,” since July of 1994. Although the Government had
knowledge of Dote’s new bookmaking enterprise at the
time of Dote’s September 1996 sentencing before Judge
Manning, it did not disclose, either to Dote or to the
court, its investigation of Dote’s participation in the Dote-
Mazza Enterprise at that time. Instead, the Government
waited approximately four years to present its evidence
to a grand jury, which issued an indictment against Dote
on April 27, 2000.
  Similar to the November 1994 indictment, the April 27,
2000 indictment (the “Second Indictment”) charged Dote
with racketeering and illegal bookmaking. According to
the facts set forth in the Second Indictment, Dote con-
tinued to engage in the Dote-Mazza Enterprise’s illegal
bookmaking activities until as late as August of 1997 (some
nine or more months after his October 29, 1996 incarcera-
tion, and over ten months after his September 1996 sen-
tencing by Judge Manning). Although similar in nature
to the allegations in the First Indictments, the unlawful
conduct alleged in the Second Indictment was otherwise
No. 02-1410                                                3

distinct and separate from the activities charged in the
First Indictment, insofar as the Dote-Mazza Enterprise
involved different co-conspirators than the Dote-Damico
Enterprise (namely, Francis Patrick Mazza, Donald F.
Scalise, Carl R. Dote, Jack Cozzi, Frank J. Adamo, and
Sherman Goldman), and took place over a different time
period (from July 1994 through August 1997).
  Appearing before District Judge James B. Moran, Dote
moved to dismiss the Second Indictment, arguing that
the Government’s delay in issuing the Second Indict-
ment violated his Sixth Amendment right to a speedy
trial. The court denied Defendant’s motion to dismiss the
indictment on this basis, because the “Sixth Amendment
right to a speedy trial is only triggered by an arrest,
indictment or other official accusation.” United States v.
Dote, No. 00-CR-342-1 at 2 (N.D.Ill. Feb. 6, 2001). Thus, the
court determined that Dote’s allegations of pre-indict-
ment delay did not implicate his Sixth Amendment rights.
  The court also considered whether the delay violated
Dote’s Fifth Amendment right to due process, but ulti-
mately concluded that no violation had occurred, because
no prejudice resulted from the Government’s delay in
obtaining the Second Indictment. The Court noted that
Dote failed to meet his burden of “particulariz[ing]” the
nature of the prejudice he claimed to have suffered on
account of the delay, and also failed to establish that
such prejudice was “certain.” Id. at 5. The court opined
that, in any case, it did “have the discretion to take [a]
departure[ ] if appropriate,” implying that, at the sen-
tencing stage, it would consider whether to apply a down-
ward departure on account of Dote’s complaints regard-
ing pre-indictment delay. Id. at 6.
  On June 26, 2001, Dote pled guilty to the charges set
forth in the April 27, 2000 Indictment, namely, racketeering
conspiracy, in violation of 18 U.S.C. § 1962(d), operation
4                                                   No. 02-1410

of an illegal gambling business, in violation of 18 U.S.C.
§ 1955, and engaging in interstate travel in aid of a racke-
teering enterprise, in violation of 18 U.S.C. § 1952. At
sentencing, Dote moved the court for a downward depar-
ture, which the sentencing judge denied because, in his
words: “I don’t think I have the authority to downwardly
depart” under the facts in this case. Sent. Tr. at 8. Dote
was sentenced at the low end of the Guidelines range (51
to 63 months) to 51 months in prison and three years
of supervised release.


II. Analysis
  Dote claims that he was entitled to a downward depar-
ture based on the Government’s pre-indictment delay.
Specifically, he argues that the Government’s failure to
alert the September 1996 sentencing court to his participa-
tion in the Dote-Mazza Enterprise resulted in an “install-
ment plan” prosecution of his bookmaking crimes that
prevented him from receiving a “single enhanced sentence”
at his September 1996 sentencing.1 Dote relies on United
States v. Martinez, 77 F.3d 332 (9th Cir. 1996), to support
his contention that he was entitled to a downward de-
parture at his February 2002 sentencing based on the
Government’s pre-indictment delay. He claims that if
the Government had disclosed its investigation of the Dote-



1
  Under Dote’s “installment plan” analogy, the “first installment”
was the First Indictment that charged him with bookmaking
and RICO violations associated with the Dote-Damico Enterprise,
and the “second installment” was the Second Indictment that
charged him with bookmaking and racketeering crimes connected
to the Dote-Mazza Enterprise. Dote argues that he should have
been sentenced based on both series of crimes (i.e., the Dote-
Damico Enterprise and the Dote-Mazza Enterprise), simulta-
neously, at the September 1996 sentencing.
No. 02-1410                                                       5

Mazza Enterprise during the September 1996 sentenc-
ing hearing he might have received a “single enhanced
sentence” insofar as the sentencing court could have
ordered the sentences for the two sets of crimes (Dote-
Damico Enterprise and Dote-Mazza Enterprise) to be
served concurrently, or could have assessed his subsequent
illegal activities (Dote-Mazza Enterprise) as relevant
conduct. Dote’s Br. at 13. See also Dote’s Downward
Departure Br. at 3 (“Had the government disclosed to the
September 1996 sentencing court Anthony Dote’s [most
recent] purported bookmaking activity, that court would
have incorporated Dote’s [mis]conduct while imposing a
single sentence.”) (brackets in the original).2



2
  Although Dote did not argue as much before the sentencing
court, or even on appeal, the Government noted at oral argu-
ment that Dote could have argued that the Government’s delay
in issuing the indictment precluded him from obtaining a concur-
rent sentence under § 3584(a) insofar as he was no longer
incarcerated on the first charges by the time he was sentenced
as to the Second Indictment.
   Under § 3584(a), a district court may order a sentence be served
concurrently to any undischarged sentence still being served by
a defendant. However, as we held in Schaefer, “§ 5G1.3(a) [of the
Sentencing Guidelines] creates a presumption in favor of a
consecutive sentence,” in cases such as Defendant’s, “where the
instant offense ‘was committed while the defendant was serv-
ing a term of imprisonment’ for an offense that has ‘been fully
taken into account in the determination of the offense level for the
instant offense’. . . .” United States v. Schaefer, 107 F.3d 1280,
1284-85 (7th Cir. 1997) (quoting U.S.S.G. § 5G1.3(a)). Therefore,
to order that a prison sentence run concurrent to an undischarged
sentence on a prior charge, a sentencing court must “specifical-
ly articulate the reasons why it believe[s] the particular case
falls outside the Guidelines’ ‘heartland.’ ” Schaefer, 107 F.3d
at 1285.
                                                      (continued...)
6                                                      No. 02-1410

  In light of Dote’s reliance on United States v. Martinez
to support his application for a downward departure, a
brief review of the case is in order. In Martinez, the defen-
dant Martinez was initially indicted in June 1993 on a
charge of possession of stolen property. At his sentenc-
ing hearing, held in October of 1993, the court assessed
Martinez’s relevant conduct at $60,000 worth of stolen
toys, id., and sentenced him to eight months’ imprison-
ment. Unbeknownst to the sentencing court, Martinez—at
the same time he perpetrated the toy theft—was also
caught on tape (by authorities) transporting truckloads of
other stolen goods that totaled around $1.4 million in
merchandise (stolen Gap sweaters, Sharp videocassette re-
corders, etc.). Despite the fact that Martinez’s toy theft
was part of the same scheme and course of illegal conduct
as his theft of the other goods, the Government did not
obtain an indictment based on the additional $1.4 million
in stolen goods until May 1994. The only explanation for
the Government’s separate prosecution of the related
thefts was that the tape recordings of the thefts named in
the May 1994 indictment had been given to an overworked


2
  (...continued)
  But the Defendant failed to even mention Section 3584(a) before
the district court (or, for that matter, in his main brief on appeal),
and we do not agree that the district court’s failure to depart
on such basis was plain error. See Schaefer, 107 F.3d at 1284-85
(where a defendant fails to timely raise an issue, he has waived
the issue for purposes of appeal, and we review under the “plan
error” standard). Dote has failed to present us with any cause
or reason to reject the Sentencing Guidelines’ presumption
against concurrent sentences. Nor have we, from a review of the
record, ascertained anything extraordinary that brings Dote’s case
outside the heartland of the Guidelines. Accordingly, the district
court’s failure to order a downward departure based on Dote’s
alleged missed opportunity for a concurrent sentence under
§ 3584(a) did not rise to the level of plain error.
No. 02-1410                                              7

assistant U.S. attorney who failed to act upon the informa-
tion in the tape recordings in a timely manner. Id. at
334. According to the sentencing court, there was “no
evidence in the record to support the argument that the
delay was intentional [on the part of the government].” Id.
Nonetheless, the district court found that the defendant
had suffered prejudice on account of the delay, primarily
because his total sentence would potentially be longer
because the “indictment was not returned early enough
so that his cases could be tried together.” Id. at 335. On
this basis, the district court dismissed the second indict-
ment.
  On appeal, the Ninth Circuit reversed, finding that “the
defendant did not sufficiently establish prejudice” to
warrant dismissal of the indictment. Id. at 335. In revers-
ing the district court’s order of dismissal, the Court of
Appeals noted that the prejudice to the defendant of the
delay in the indictments was speculative, because the
sentencing court had latitude to depart downward “if it
determined that there was unfair prejudice [in terms of
the length of Martinez’s sentence] because of the timing
of the indictments.” Id. at 336. Specifically, the court
recognized that “because of the random event that the tape
recordings of some of his crimes [we]re on the desk of
an especially busy AUSA,” the various crimes were not
“grouped” when they otherwise would have been. On that
basis, the Ninth Circuit noted that a downward depar-
ture based on pre-indictment delay would be appropri-
ate under 18 U.S.C. § 2552(b), if “the district judge de-
termines that the groupable nature of the crimes ma[de]
the fortuitous extension of the sentence unfair. . . .” Id.
at 337.
  In the case before us, the district court similarly de-
nied Dote’s motion to dismiss the indictment, noting that
it could downward depart at the sentencing stage, if ap-
propriate. Nonetheless, at sentencing, the court, after
8                                                     No. 02-1410

hearing the respective arguments and considering the
request, denied Dote’s motion for a downward departure,
stating that it “ha[d] considered [the motion for down-
ward departure] [and] read all the cases that you pre-
sented to me, both sides,” but ultimately concluded that
it “[did not] have that authority.” Sent. Tr. at 7. The sen-
tencing court distinguished Dote’s case from Martinez,
noting that in “Martinez . . . everything [involving the
investigation of the subsequently-charged thefts] was
complete [at the time of the initial sentencing], and it
was just a matter that one assistant U.S. attorney had
one piece of it, and somebody had the other pieces, and
that somebody else didn’t get to it until somewhat later.
[Therefore,] instead of having the first piece be [prosecuted
as] part of an overall package, it got handled separately,
which led to the conclusions of the Court there.” Sent Tr.
at 7-8. The court continued to emphasize that in Dote’s
case, and in contrast to Martinez, “the [prior case] before
Judge Manning [involved] a different operation” from the
Dote-Mazza gambling enterprise charged in the Second
Indictment. Id. at 8. Moreover, the court noted that “[the
crimes at issue in the Second Indictment] w[ere] ongoing
at the time [of the September 1996 sentencing on the
First Indictment], which means that all sorts of other
things kick in [by way] of the guidelines.” Id.3 For all of


3
   Although the sentencing court was not specific as to exactly
what it meant when it stated that “all sorts of other things kick
in in view of the guidelines” when a defendant commits a crime
after being sentenced on another offense, it is likely that the court
was referring to U.S.S.G. § 5G1.3(a), which “creates a presump-
tion in favor of a consecutive sentence,” in cases such as Defen-
dant’s, where the defendant committed the instant offense after
being sentenced for, or while serving a term of prisonment for,
an offense that was “fully taken into account in the determination
of the offense level for the instant offense. . . .” United States
v. Schaefer, 107 F.3d 1280, 1284 (7th Cir. 1997) (discussing
                                                       (continued...)
No. 02-1410                                                         9

those reasons, the sentencing court concluded that it did
not “have the authority to downwardly depart.” Id. We
review a district court’s determination that it had no
discretion to depart downward de novo. See United States
v. Hirsch, 280 F.3d 811, 814 (7th Cir. 2002).
  As reflected in Sentencing Guideline § 5K2.0, “[u]nder
18 U.S.C. § 3553(b), the sentencing court may [depart down-
ward from] the applicable guidelines [range], if the court
finds ‘that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately
taken into consideration by the [Sentencing Guidelines].’ ”
For such a departure to be permissible under the Guide-
lines, “certain aspects of the case must be found unusual
enough for it to fall outside the heartland of cases in the
Guidelines.” Koon v. United States, 518 U.S. 81, 98 (1996)
(emphasis added). Recognizing that pre-indictment delay
may qualify as a “mitigating circumstance” under § 5K2.0,
the Ninth Circuit opined in Martinez that where a “random”
delay in issuing an indictment resulted in a “harsher
sentence” on an offense that would have “ordinarily” been


3
  (...continued)
U.S.S.G. § 5G1.3(a)). The Government argued in its brief to the
district court that the court should sentence Dote to “the equiva-
lent of a consecutive sentence” in light of § 5G1.3(a). See Gov. Br.
at 7. Because “we . . . presume the district court read the briefs
submitted during the [sentencing] proceedings,” see, e.g., Ross
Bros. Const. Co. v. Int’l Steel Services, Inc., 283 F.3d 867, 872 (7th
Cir. 2002), the court must have considered the Government’s
argument regarding § 5G1.3(a) in its decision to deny the down-
ward departure.
   Considering the effort of the Sentencing Commission to
discourage criminal activity during incarceration (as reflected
in U.S.S.G. § 5G1.3(a)), the fact that Dote committed the crimes
set forth in the Second Indictment while he was incarcerated
was indeed an aggravating reason not to grant Dote considera-
tion for a concurrent sentence.
10                                              No. 02-1410

grouped with another prior offense (and thus resulted in
a “fortuitously” longer total term of incarceration), a court
under such circumstances may award a downward depar-
ture. Martinez, 77 F.3d at 337 (emphasis added).
  But as the district court noted at sentencing, Dote’s
situation is distinguishable from that of Martinez in a
number of respects. While Martinez had accomplished
all of the relevant offenses by the time he was sentenced
on the first indictment in October of 1993, Dote, at the
time of his first sentencing (September 1996), was still
engaged in the illegal conduct alleged in the Second In-
dictment. Moreover, as the Government posited to the
district court, the Government had not completed its
investigation of the Dote-Mazza Enterprise at the time of
the September 1996 sentencing, and “was not in posses-
sion of all of the evidence supporting the charges [in the
Second Indictment] at the time of [the earlier] sentencing,”
Gov. Opposing Br. at 3. Thus, in Dote’s case, as opposed
to being “random” or “fortuitous,” the Government’s fail-
ure to indict Dote on his second set of crime (the Dote-
Mazza Enterprise) prior to his sentencing on the first
set of crime (the Dote-Damico Enterprise) was explained
by the fact that Dote was still engaging in the Dote-Mazza
gambling ring at the time of the September 1996 sentenc-
ing (and indeed thereafter, during the first months of his
incarceration).
  It is also worthy of note that, unlike in Martinez, Dote’s
crimes (namely, his participation in the Dote-Damico
Enterprise from 1978 through 1992, and his participation
in the Dote-Mazza Enterprise from July 1994 through
August 1997) were independent of each other, insofar
as they involved different co-conspirators and took place
over distinct time periods. The fact that Dote’s two in-
dictments addressed separate and distinct crimes further
mitigated any potential “unfairness” that might other-
wise have attached to the Government’s decision to prose-
cute the two sets of crimes separately.
No. 02-1410                                              11

  We have never imposed an obligation on the Government
to disclose at a sentencing hearing an incomplete and
continuing investigation of separate and distinct crim-
inal conduct (different co-defendants, different time peri-
ods). To the contrary, we have emphasized in prior opin-
ions that we “have no interest in micro-managing law
enforcement’s criminal investigations and its arrests of
suspected [racketeering] conspirators.” United States v.
Pearson, 113 F.3d 758, 762 (7th Cir. 1997). Because the
Government had adequate basis for waiting until after the
September 1996 sentencing to obtain the Second Indictment
on the criminal charges relating to the Dote-Mazza Enter-
prise (which was still ongoing at the time of that sentenc-
ing), we can ascertain no basis for concluding that Dote’s
case is highly “unusual” or that it was somehow “unfair” for
Dote to face separate prosecution on the two sets of of-
fenses.
  We also note that certainly Dote himself was fully aware
of his ongoing violation of federal law at the time of his
September 1996 sentencing. We have no reason to believe
that he was incapable or in any way prevented from
disclosing such activities to the court. In all likelihood,
Dote had every opportunity to do so, and would have
done so if he had determined that such disclosure was in
his best interest. Instead, Dote chose not to disclose his
subsequent forays into (and ongoing participation in) the
racketeering and bookmaking trade (the Dote-Mazza
Enterprise). He took a gamble that those activities would
go undetected, and lost.
  There being no basis for concluding that Dote’s case
was outside the “heartland” of the Sentencing Guidelines,
we hold that the district court’s determination that it
had no authority to depart downward under the facts of this
case was proper.
                                                AFFIRMED.
12                                        No. 02-1410

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-13-03
