                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-4579
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                    JOSEPH BIGICA,
                                                   Appellant
                                    _______________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. No. 2-12-cr-00318-001)
                     District Judge: Honorable Faith S. Hochberg
                                    _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 29, 2013

             Before: FISHER, JORDAN and SLOVITER, Circuit Judges.

                                (Filed: October 31, 2013)
                                    _______________

                                       OPINION
                                    _______________

JORDAN, Circuit Judge.

       Joseph Bigica appeals the sentence imposed on him by the United States District

Court for the District of New Jersey. He contends that the District Court erred in

calculating his sentencing range by not considering his two offenses to be of the same

general type and by not holding an evidentiary hearing before ruling on his request for an
offense-level reduction for acceptance of responsibility. We discern no error in the

sentencing and will affirm.

I.     Background1

       On May 9, 2012, Bigica pled guilty to a two-count Information charging him with

corruptly interfering with the due administration of the internal revenue laws, in violation

of 26 U.S.C. § 7212(a), and conspiring to violate the Federal Election Campaign Act

through the use of straw contributors to a federal election campaign, in violation of 18

U.S.C. § 371. Those charges were the result of two things: first, Bigica’s failure to pay

any of the approximately $1,488,020 in federal taxes he owed for 1999 through 2006,

despite his having earned $5,801,888 in gross income during that time, and, second, his

contribution from 2006 to 2009 through straw donors of $98,600 to various federal

election campaigns.

       In Bigica’s plea agreement, the parties noted their positions on certain issues

related to the calculations necessary under the United States Sentencing Guidelines

(“U.S.S.G.”). In particular, they stipulated to a total offense level of 22 for his tax

offense and to a total offense level of 22 for his illegal campaign contribution offense.

The government did not believe that the counts should be grouped for sentencing

purposes, but Bigica reserved the right to argue that they should be grouped. The parties

also stipulated that Bigica had demonstrated acceptance of responsibility and he thus

qualified for a 3-level reduction in his offense level calculation.

       1
         Because we write solely for the parties, we set forth only the facts necessary to
resolve this appeal.

                                              2
       The United States Probation Office prepared a presentence investigation report

(“PSR”) which accepted Bigica’s offense level for the tax evasion count as 22 and his

offense level for the illegal campaign contributions count as 22. It added a 2-level

enhancement because the counts were not grouped, but it “marginally afforded” Bigica a

3-level offense-level reduction for acceptance of responsibility. (PSR ¶ 80.) That

resulted in an adjusted offense level of 21. With Bigica’s Criminal History Category of I,

the PSR provided his final Guidelines range as 37 to 46 months’ imprisonment.

       In his written response, Bigica did not question the calculation, but did object to

the analysis of his financial ability to pay restitution. Specifically, the PSR explained that

              [w]hile the defendant unquestionably suffers from various
              financial shortcomings, we submit he has not proven an
              inability to pay a fine. Bigica failed to submit complete
              financial statements, and the documentation and information
              that was otherwise submitted is, in parts, contradictory if not
              altogether absent. The defendant continues to flagrantly
              disregard his legal responsibilities and clearly lives way
              above his financial means, even in light of the instant criminal
              prosecution and inherent sanctions the Court may impose.
              While a cursory review of the financial statement submitted
              by the defendant in August 2012 would make him appear
              nearly destitute, any assets are directly attributable to the
              defendant’s income as Mrs. Bigica is not employed outside
              the home. The expenditures and liabilities proffered by the
              defendant consist largely of unnecessary living expenses,
              those which exceed the income Bigica reports, or are debts
              resulting from the defendant’s criminal conduct.

(Id. ¶ 232.) The PSR summarized Bigica’s objection, stating that he contended he made a

“good faith effort” to provide the requested documentation, but explained that his

financial situation was “complex.” (Id. at 63.) Bigica also claimed that he failed to

provide complete financial statements because he was “somewhat disorganized” with

                                              3
respect to his financial documentation. (Id.) He also claimed that he was attempting to

pay “pre-existing financial responsibilities,” which apparently prevented him from

beginning to pay his back-taxes. (Id.) The day before sentencing, the District Court

ordered Bigica to submit his 2011 tax return and other required financial information to

the Probation Office. He complied with that order.

      At sentencing, Bigica argued that his two counts should have been grouped

pursuant to U.S.S.G. § 3D1.2(d),2 which would have resulted in an offense level of 22

before any acceptance of responsibility reduction was granted. The District Court

disagreed and concluded that the two counts should not be grouped because they


      2
          That Guidelines provides:
               All counts involving substantially the same harm shall be
               grouped together into a single Group. Counts involve
               substantially the same harm within the meaning of this rule:
                     (a) When counts involve the same victim and the same
                     act or transaction.
                     (b) When counts involve the same victim and two or
                     more acts or transactions connected by a common
                     criminal objective or constituting part of a common
                     scheme or plan.
                     (c) When one of the counts embodies conduct that is
                     treated as a specific offense characteristic in, or other
                     adjustment to, the guideline applicable to
                     another of the counts.
                     (d) When the offense level is determined largely on the
                     basis of the total amount of harm or loss, the quantity
                     of a substance involved, or some other measure of
                     aggregate harm, or if the offense behavior is ongoing
                     or continuous in nature and the offense guideline is
                     written to cover such behavior.
U.S. Sentencing Guidelines Manual § 3D1.2.

                                             4
involved different harms and were not of the same general type of conduct. Thus, at the

stage of analysis before the “acceptance of responsibility” issue was addressed, the Court

adopted an adjusted offense level of 24.

       The District Court then rejected Bigica’s request for an acceptance of

responsibility reduction. The judge explained, “[i]n 13 years on the bench[,] I have never

denied acceptance of responsibility,” but “[i]n this case I’m inclined to” because of

Bigica’s apparent lack of compliance with Probation’s requests for financial

documentation and refusal to curtail his extravagant lifestyle. (App. at 130.) The Court

gave Bigica “every opportunity to prove” that he deserved the reduction but ultimately

concluded that he had continued in his same lifestyle and had not fully complied with the

probation department’s request for financial documents. (Id.) The Court then calculated

his Guidelines range as 51 to 63 months, and, after considering the factors set forth in 18

U.S.C. § 3553(a), it sentenced Bigica to 60 months’ imprisonment.

       Bigica filed a timely notice of appeal. 3




       3
        The government stipulated in the plea agreement that Bigica could appeal his
sentence if the Court determined his offense level was above 21.

                                              5
II.    Discussion4

       Bigica contends that the District Court erred by failing to group his two counts of

conviction together for sentencing, and by not holding an evidentiary hearing on his

objection to the PSR. We address each argument in turn and conclude that the District

Court was correct in both respects.5

       A.     Grouping of Counts

       As noted earlier, § 3D1.2 of the U.S.S.G. provides, in relevant part:

              All counts involving substantially the same harm shall be
              grouped together into a single Group. Counts involve
              substantially the same harm within the meaning of this rule

       4
         The District Court had jurisdiction pursuant 18 U.S.C § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. “[A] determination of
whether ‘various offenses were part of one overall scheme’ [for grouping under the
Guidelines] is essentially a factual issue which we review under a clearly erroneous
standard. … [W]hen reviewing the appropriateness of a grouping, deference must be
given to the district court.” United States v. Seligsohn, 981 F.2d 1418, 1425-26 (3d Cir.
1992), superseded by statute for other reasons as stated in United States v. Corrado, 53
F.3d 620, 624 (3d Cir. 1995). “Our review of whether the district court properly
complied with the mandate of Federal Rule of Criminal Procedure 32[] is plenary.”
United States v. Furst, 918 F.2d 400, 406 (3d Cir. 1990). We review for abuse of
discretion a district court’s decision to hold (or not to hold) an evidentiary hearing at
sentencing. United States v. Houston, 217 F.3d 1204, 1206-07 (9th Cir. 2000); cf. United
States v. Styer, 573 F.3d 151, 153-54 (3d Cir. 2009) (observing that the decision whether
to hold an evidentiary hearing in connection with a motion for reduction of sentence was
committed to the trial court’s discretion and reviewed for abuse thereof).
       5
         Bigica raises a third argument in his reply brief: he says the government violated
the plea agreement by not arguing at sentencing that he was entitled to an offense-level
reduction for acceptance of responsibility. We have consistently held that arguments
made in reply briefs are waived. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005). Bigica fails to present any sound reason why we should not apply that rule in this
case. In any event, the government did state at sentencing that it believed Bigica had
honored the plea agreement and had therefore “accepted responsibility for purposes of the
plea agreement.” (App. at 167.) The government’s motion to strike Bigica’s late-
breaking argument or, alternatively, to file a sur-reply brief is denied as moot.

                                             6
                 … (d) [w]hen the offense level is determined largely on the
                 basis of the total amount of harm or loss, the quantity of a
                 substance involved, or some other measure of aggregate
                 harm, or if the offense behavior is ongoing or continuous in
                 nature and the offense guideline is written to cover such
                 behavior.

U.S.S.G. § 3D1.2(d).6 The commentary expands on that section, stating, “Counts

involving offenses to which different offense guidelines apply are grouped together under

subsection (d) if the offenses are of the same general type and otherwise meet the criteria

for grouping under this subsection. In such cases, the offense guideline that results in the

highest offense level is used; see U.S.S.G § 3D1.3(b). The ‘same general type’ of offense

is to be construed broadly.” Id. cmt. n.6.

        Bigica contends that the District Court erred in not concluding that his tax evasion

and illegal campaign contribution counts were of the “same general type” so as to be

grouped for purposes of sentencing. Specifically, he points to the District Court’s

statement that the victims of his crimes were the same: the citizens of the United States. 7

Therefore, as his argument goes, “[b]oth of these schemes involved fraud against the

federal government and harm to ‘all citizens of the United States,’ making them the same

general type” for grouping purposes. (Appellant’s Opening Br. at 11.)




        6
            No one contends that subsections (a), (b), or (c) of § 3D1.2 are applicable in this
case.
        7
        Bigica’s characterization of the Court’s statement that the victims of his crimes
were the American people as it relates to grouping is misleading. The Court was not
addressing his grouping argument, but instead responding to his argument that his crimes
had no victims at all for consideration under the § 3553(a) factors.

                                                 7
       Bigica is mistaken. At a high level of abstraction, every violation of federal law

could be said to victimize the general citizenry, but taking that approach would make

reasoned distinctions of the type contemplated by the Guidelines impossible. Not all

criminal activity is of the same general type, and it should not be treated as such.

       Tax evasion has the purpose of depriving the federal government of money owed.

Federal election fraud, on the other hand, has the purpose of influencing a political figure

with forbidden donations of cash or other resources. Those crimes are plainly different

and do not warrant grouping. Cf. United States v. Seligsohn, 981 F.2d 1418, 1425 (3d

Cir. 1992) (concluding, inter alia, that tax evasion and bribery of a union official are not

sufficiently related for grouping under § 3D1.2(d)), superseded by statute for other

reasons as stated in United States v. Corrado, 53 F.3d 620, 624 (3d Cir. 1995).

Accordingly, the District Court’s refusal to group the offenses was not erroneous, let

alone clearly erroneous.

       B.     Requirement for an Evidentiary Hearing

       Federal Rule of Criminal Procedure 32 provides that the District Court “must – for

any disputed portion of the presentence report or other controverted matter – rule on the

dispute or determine that a ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in sentencing … .” Fed. R.

Crim. P. 32(i)(3)(B). “When a defendant disputes facts included in a presentence report,

Rule 32([i])(3)([B]) … requires a sentencing court to resolve those disputes or to

determine that it will not rely on the disputed facts in sentencing.” United States v.

Gomez, 831 F.2d 453, 455 (3d Cir. 1987).

                                              8
       Bigica contends that, because he objected to paragraph 232 of the PSR, which

contained an analysis of his financial condition and a representation that he had not been

fully cooperative, he was entitled to an evidentiary hearing so the Court could rule on

disputed facts. 8 That is not correct. Rule 32 does not make an evidentiary hearing

mandatory; it only requires the District Court to either make a finding as to the disputed

facts or expressly disclaim use of the disputed facts in sentencing. United States v. Furst,

918 F.2d 400, 408 (3d Cir. 1990). The Court here complied with that rule. At the

beginning of the sentencing hearing, the Court specifically asked Bigica whether there

were any factual errors or omissions contained within the PSR that needed to be

addressed. He responded that there were factual inaccuracies, and the Court proceeded to

either make findings regarding those alleged inaccuracies or state that it would not

consider those facts. Bigica did not, however, state that there was a factual error with

respect to the contents of paragraph 232 of the PSR. Moreover, at the sentencing hearing,

the Court specifically asked Bigica to present his case as to why the PSR was not correct

and why he should receive an acceptance of responsibility reduction. Tellingly, Bigica

fails to address in meaningful fashion the following statement from the Court:

              Here, the conduct of the defendant post plea that has been of
              concern to the Court, and which I have amply given the
              defendant and his counsel time and the opportunity to
              address, is first and foremost the compliance with the request
              of the United States Probation Office and recognition and
              honoring the promise made at the plea agreement of full

       8
         Bigica does not indicate what evidence he would have presented at an
evidentiary hearing, beyond financial documents that had already been submitted to the
District Court.

                                             9
              restitution. The presentence report is replete with multiple
              examples that go far beyond any claim of mistake or error in
              judgment or an excusable neglect in not supplying complete
              and accurate information in his initial personal financial
              statements to the [P]robation [O]ffice.

(App. at 202.) The Court thus considered Bigica’s contested facts and decided not to

draw the inferences he wished from those facts. Simply put, Bigica characterized the

facts in the PSR differently, and the Court, after giving time for argument, found Bigica’s

characterization unworthy of credence. There was no error in the sentencing procedure.

III.   Conclusion

       For the foregoing reasons, we affirm the sentence imposed by the District Court.




                                            10
