
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-2067                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  DONATO F. ANGIULO,                                Defendant, Appellant.                              _________________________          No. 94-2068                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                FRANCESCO F. ANGIULO,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                              _________________________               Anthony M. Cardinale for appellants.               ____________________               James  C. Rehnquist, Assistant  United States Attorney, with               ___________________          whom  Donald  K. Stern,  United  States Attorney,  and  Ernest S.                ________________                                  _________          Dinisco, Assistant United States Attorney, were on brief, for the          _______          United States.                              _________________________                                    June 15, 1995                              _________________________                    SELYA, Circuit Judge.   This procedural motley requires                    SELYA, Circuit Judge.                           _____________          that  we explore  the  interstices  of sentence-related  criminal          rules  that predate  the inauguration  of the  federal sentencing          guidelines,  and are  in  that sense  relics  of a  bygone  era.1          Having  completed the  judicial  equivalent of  an archaeological          dig, we deny the requested relief.          I.  BACKGROUND          I.  BACKGROUND                    In 1983, a federal  grand jury indicted the appellants,          Donato  and Francesco  Angiulo,  along with  several others,  for          activities allegedly undertaken in  furtherance of the affairs of          the  Patriarca family of La  Cosa Nostra.   Though the indictment          charged certain members of the enterprise with predicate offenses          that  included murder, it did not allege that Donato or Francesco          Angiulo personally had committed any homicidal acts.  Following a          lengthy trial, a jury  found the appellants guilty on  a plethora          of counts,  including conspiracy to make  extortionate extensions          of  credit, 18 U.S.C.    892(a), RICO conspiracy,  id.   1962(d),                                                             ___          racketeering  violations,  id.    1962(c),  and  operation of  an                                     ___          illegal gambling business, id.   1955.                                     ___                    On April 3,  1986, the  Hon. David S.  Nelson, who  had          presided  at the  trial,  convened a  disposition  hearing.   The          colloquy focused  on the  presentence investigative  reports (PSI          Reports).   Among  other things,  both  PSI Reports  contained  a          statement, under the heading "prosecution version," to the effect                                        ____________________               1We set forth in an appendix hereto the text of the relevant          procedural rules as they  stood on the date of  sentencing (April          3, 1986).                                          2          that the  enterprise with which the appellants  were affiliated            the Patriarca family   engaged in "crimes, including murder, as a          matter of duty," in  order to advance familial interests.   There          followed a compendium of felonies, including four murders and two          unconsummated murder  conspiracies,  allegedly committed  by  the          enterprise.    Elliot  Weinstein,  Francesco Angiulo's  attorney,          took umbrage at that account.  He stated in part:                         In  support of my  objection and request                    to  strike  . .  .  I  indicate that  nowhere                    during the proceedings in  the case was there                    any evidence or suggestion that my client was                    involved in acts  of murder, conspiracies  to                    murder or shared in any intent or desires for                    the   murder  of  any   person  at  all.  The                    specifically  named  victims   in  the   pre-                    sentence   report    have   no   relationship                    whatsoever to my client and indeed during the                    course  of  the  proceedings  the  government                    stated  to  the   Court  at  several  sidebar                    discussions and the  Court indeed  instructed                    the jury that evidence  as to murders was not                    being admitted against  Francesco Angiulo . .                    . .          Robert  Sheketoff,  Donato   Angiulo's  lawyer,  joined   in  the          objection.  He termed the recital "misleading" and added:                         My  client  was  not  charged  with  any                    predicate acts involving murder.  And I think                    it is severely prejudicial  the way they have                    drafted  this and  it is  not clear  from the                    report I would suggest either  in the offense                    section or  in any point in  the report that,                    in fact, he was not charged, that there is an                    affirmative statement that he was not charged                    with any predicate acts of the verdict.          Judge  Nelson  overruled these  objections  and  left intact  the          references to  the multiple  murders.   He proceeded  to sentence          both  Angiulos to  lengthy  terms of  immurement.   The  brothers          appealed  their convictions  on other  grounds, but  eschewed any                                          3          further  challenge  to  the  PSI  Reports.    Their  appeals were          unavailing.  See  United States  v. Angiulo, 897  F.2d 1169  (1st                       ___  _____________     _______          Cir.), cert. denied, 498 U.S. 845 (1990).                 _____ ______                    On    December   18,   1990,   the   appellants   filed          substantially  identical motions  for  sentence reduction  in the          district court.  They served these motions within 120 days of the          Supreme Court's  denial of certiorari (which  occurred on October          1, 1990).   The motions  invoked former Criminal  Rule 35(b)  and          spotlighted   a  purported   disparity   between  the   sentences          appellants  received  and  the  sentences appellants  would  have          received  under the newly  minted federal  sentencing guidelines.          The government  filed objections to the  motions and subsequently          served a detailed opposition.                    Toward the end of 1991, the appellants,  acting pro se,                                                                    ___ __          each filed an undated  "Rule 35 Reply" that bemoaned  the adverse          parole-related effects of  the references  to murder  in the  PSI          Reports.   These pleadings raised, for the first time, the charge          that  Judge Nelson had violated  Fed. R. Crim.  P. 32(c)(3)(D) in          the  course of  imposing  sentence.   On  January 24,  1992,  the          appellants, through new counsel, each filed in the district court          a  pleading entitled "Appeal Pursuant to  28 C.F.R. 542.15 and/or          Motion Pursuant to Rule  32(c)(3)(D)."  These pleadings described          the  anticipated   adverse  effects  of  the   murder  references          contained in the PSI Reports, and sought the expungement of those          references.   In each instance,  the clerk of  court docketed the                        ___________________________________________________          pleading  as a separate motion.  The contents are consistent with          ______________________________                                          4          that  characterization:    each pleading  clarified  that  "[t]he          alternative and additional remedy [each appellant] seeks pursuant          to  Fed. R. Crim. P. 32(c)(3)(D) is simply another more expedient          manner  of   effecting  the  relief  he   has  previously  sought          administratively."2    These  pleadings  adopted  the defendants'          earlier Rule  35(b) motions by  reference but cautioned  that the          new initiatives should be viewed separate and apart therefrom "as          an effort to implement the Rule 32 requests [that each] defendant          made at the time of his sentencing."                    Matters   remained  dormant  for  a  spell,  presumably          because Judge Nelson assumed senior status.  Eventually, the Hon.          William G. Young stepped into the void.  On April 25, 1994, Judge          Young denied the appellants'  Rule 35(b) motions, concluding that          the sentences  imposed by  Judge Nelson were  "entirely justified          and  necessary" to  vindicate important  public policy  concerns.          United States  v. Angiulo, 852 F.  Supp. 54, 62 (D.  Mass. 1994).          _____________     _______          The Angiulos did not  prosecute appeals from the denial  of their          Rule 35(b) motions.                    On May 31, 1994, the appellants filed a written request          asking  Judge  Young  to  hold  a  "status  conference  regarding          defendants' motions pursuant to  Rule 32(c)(3)(D)."  Although the          record is tenebrous as to whether such a conference materialized,          the  request sufficed  to  bring  the  Rule  32  motions  to  the                                        ____________________               2The regulation cited in  the January 24 pleadings describes          the  procedure for  administrative appeals  within the  Bureau of          Prisons,  but makes no mention of judicial review.  See 28 C.F.R.                                                              ___            542.15 (1994).                                          5          forefront.  In an unpublished rescript dated September 12,  1994,          Judge Young addressed  those motions.  He  discerned no violation          of  Rule  32,  finding  that  the  objections  proffered  at  the          disposition  hearing did not dispute  the factual accuracy of the          murder  references.  In  the bargain,  the court  expressed doubt          about the  intrinsic merit of the objections, indicating that the          statements contained in the PSI Reports were not misleading, and,          moreover, were directly relevant to the sentencing determination.                    The appellants  filed these timely appeals  in the wake          of the court's September 12 order.  They seek either resentencing          or,  in the alternative, redaction  of the PSI  Reports to remove          the  murder  references that  they  believe  are hindering  their          chances to secure parole.           II.  ANALYSIS          II.  ANALYSIS                    We  start with  bedrock.   Although a  district court's          denial of a motion for sentence reduction under former Rule 35(b)          is  a final  order, and,  thus, an  appealable event,  see, e.g.,                                                                 ___  ____          United States v. McAndrews, 12 F.3d 273, 278 (1st Cir. 1993); see          _____________    _________                                    ___          also United States  v. Distasio, 820 F.2d 20, 24  (1st Cir. 1987)          ____ _____________     ________          (holding  the grant of a  sentence reduction to  be an appealable          order),  the present  appeals are  not of  that persuasion.   The          district  court denied  the Rule  35(b) motion  by  order entered          April 25, 1994,  and no  action was taken  within the  applicable          appeal period.   See Fed.  R. App. P.  4(b) (providing that  such                           ___          appeals must  be taken within 10  days from date of  entry of the          order);  see also United States v. Morrillo, 8 F.3d 864, 867 (1st                   ___ ____ _____________    ________                                          6          Cir. 1994) (explaining that the time limits for taking appeals in          criminal cases  are "mandatory and jurisdictional").   Hence, the          district court's Rule 35(b) determinations are not susceptible to          review at this late date.3                    Refined to  bare essence, the  defendants' appeals must          stand or fall based on Fed. R. Crim. P. 32.   We think they fall.          Criminal  Rule  32  provides  no  independent  foundation  for  a          postsentence  motion  to correct  a  PSI  Report  and, under  the          circumstances that  obtain here,  the appellants'  motions cannot          properly  be recharacterized as timely motions under Rule 35.  We          explain briefly.                    We frequently have recognized the importance of Rule 32          and  we have  emphasized its  requirement of  literal compliance.          See,  e.g., United States  v. Hanono-Surujun, 914  F.2d 15, 18-20          ___   ____  _____________     ______________          (1st Cir. 1990); United  States v. Jimenez-Rivera, 842 F.2d  545,                           ______________    ______________          550-51 (1st Cir.),  cert. denied,  487 U.S. 1223  (1988).   These                              _____ ______          attributes,  however, do not  create jurisdiction for  a court to          entertain  postsentence motions alleging  violations of  Rule 32.          In the absence  of either an enabling statute or  language in the                                        ____________________               3In  any   event,  former  Rule  35(b)  conferred  virtually          unfettered discretion  on sentencing  courts.  See,  e.g., United                                                         ___   ____  ______          States v. DeCologero, 821 F.2d 39, 41 (1st Cir. 1987) (discussing          ______    __________          breadth of district  court's discretion).  Thus,  it seems highly          unlikely that  Judge Young's  refusal to grant  relief thereunder          could  successfully have  been  challenged,especially  given  the          obvious  inadequacy  of the  motions'  linchpin  assertion.   See                                                                        ___          United States v. Twomey,  845 F.2d 1132, 1134-35 (1st  Cir. 1988)          _____________    ______          (upholding  denial  of  Rule  35(b) motion  and  explaining  that          district  courts have  no obligation  to harmonize  sentences for          pre-guidelines  offenses  with  sentencing  results  produced  by          application of the guidelines).                                          7          rule's text that  could conceivably be  read as authorizing  such          jurisdiction, we hold that  Rule 32, in and  of itself, does  not          confer  district  court jurisdiction  to  conduct  a postsentence          review.   Accord United States  v. Engs, 884  F.2d 894, 895  (5th                    ______ _____________     ____          Cir. 1989)  (agreeing that "no  postsentence jurisdiction  exists          based solely  on Rule 32(c)(3)(D)"); United States v. Giaimo, 880                                               _____________    ______          F.2d 1561, 1563 (2d  Cir. 1989) (holding that "Rule  32, standing          alone, does  not give  a district court  jurisdiction to  correct          inaccuracies  in  a  PSI  report   after  a  defendant  has  been          sentenced"); United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.                       _____________    ______          1988);  United States  v. Peloso,  824 F.2d  914, 915  (11th Cir.                  _____________     ______          1987); United States v.  Williams, 618 F. Supp. 1419,  1420 (E.D.                 _____________     ________          Va. 1985), aff'd, 785  F.2d 306 (4th Cir. 1986); United States v.                     _____                                 _____________          Sheela,  667 F. Supp.  724, 726 (D.  Or. 1987);  United States v.          ______                                           _____________          Burkhead, 567 F. Supp. 1425, 1427-28 (W.D. Mo. 1983).4          ________                    Appellants  try to  locate  a  serviceable vehicle  for          their  Rule  32  claims  by  characterizing  their  supplementary          motions as ones  that were brought under Rule 35.   We, and other          courts,  sometimes have  allowed  violations  of  Rule 32  to  be          addressed in timely Rule 35 motions.  See, e.g., United States v.                                                ___  ____  _____________          Feigenbaum, 962 F.2d 230, 232-33 (2d Cir. 1992); United States v.          __________                                       _____________          Smith, 844 F.2d  203, 207 (5th  Cir. 1988);  Sarduy, 838 F.2d  at          _____                                        ______          158;  United  States v.  Katzin, 824  F.2d  234, 237-38  (3d Cir.                ______________     ______                                        ____________________               4At least one court has reached an opposite conclusion.  See                                                                        ___          United States v. Hart, 922 F.2d  613, 615 (10th Cir. 1990).  With          _____________    ____          respect,  we regard  Hart as  wrongly decided  and we  decline to                               ____          follow it.                                          8          1987);  Peloso, 824 F.2d at 915; United States v. Santamaria, 788                  ______                   _____________    __________          F.2d  824,  828-29  (1st Cir.  1986).    This  avenue of  review,          however,  is properly seen as  founded on former  Rule 35(a), and          more particularly, on the prong of former Rule 35(a) that permits          a district court  to "correct  a sentence imposed  in an  illegal          manner."  Like motions arising under former Rule 35(b), such Rule          35(a)  motions must be filed  within 120 days  next following the          entry of final judgment.5                    In view  of this  legal mise-en-scene,  the appellants'          attempt  to anchor  jurisdiction on former  Rule 35  suffers from          several infirmities  which, taken together, prove  fatal to their          endeavor.   First, jurisdiction to review  the alleged violations          of Rule 32 cannot be based on Rule 35(b) in  the circumstances of          this case.    While the  district  court permissibly  could  have          considered any  Rule 32 irregularities  when it decided  the Rule          35(b) motions  for discretionary  sentence reduction in  April of          1994, it  had no obligation  to do  so, and, in  all events,  the          Angiulos did not  take timely  appeals from the  denial of  these          motions.                    Second,  the circumstances  do not  permit jurisdiction          properly to be  premised on  former Rule 35(a).   The  appellants                                        ____________________               5Although former Rule 35(a) also allowed a district court to          correct  an "illegal sentence at  any time," that  remedy was not          available  to  address  a  Rule  32  violation  because  "illegal          sentences"  were  limited to  those  that  "`exceed the  relevant          statutory  maximum  limits  or  violate double  jeopardy  or  are          ambiguous or internally contradictory.'"  Katzin, 824 F.2d at 237                                                    ______          (quoting  8A James W. Moore, Moore's Federal Practice   35.03[2],                                       ________________________          at 35-36 (2d ed. 1987)).                                          9          neither  cited that  rule to  Judge Young  nor attempted  to base          jurisdiction  on it;  and,  as we  have  said, "absent  the  most          extraordinary circumstances,  legal theories not  raised squarely          in the  lower court  cannot be  broached  for the  first time  on          appeal."   Teamsters, Chauffeurs, Warehousemen  & Helpers  Union,                     ______________________________________________________          Local No. 59 v. Superline Transp.  Co., 953 F.2d 17, 21 (1st Cir.          ____________    ______________________          1992).  This  principle is  fully applicable  in criminal  cases.          See, e.g.,  United States  v. Slade,  980 F.2d  27, 30  (1st Cir.          ___  ____   _____________     _____          1992).                    Furthermore,  in order  to use former  Rule 35(a)  as a          vehicle to review ostensible Rule 32 violations, appellants would          have needed to file their motions within 120 days of the  Supreme          Court's denial  of certiorari.   The  initial Rule 35(b)  motions          were docketed within that time span, but the first pleadings that          mentioned  Rule 32 were not  served until well  after the 120-day          period expired.  Even if these  subsequent attempts somehow could          be deemed to implicate Rule 35(a), the failure to comply with the          120-day deadline  would defeat jurisdiction.6   See United States                                                          ___ _____________          v. Ames,  743 F.2d 46, 48  (1st Cir. 1984) (noting  that the time             ____          limitations  specified  in  former  Rule  35  are  mandatory  and                                        ____________________               6It is often assumed  that inaccuracies in a PSI  Report may          form the basis for a petition under 18 U.S.C.   2255.  See United                                                                 ___ ______          States v. Gattas, 862 F.2d 1432, 1433-34 & n.4  (10th Cir. 1988);          ______    ______          United  States v.  Mosquera, 845  F.2d 1122,  1124 n.1  (1st Cir.          ______________     ________          1988).  In addition,  courts have suggested that such  relief may          be obtainable pursuant to 18 U.S.C.   2241.  See Peloso, 824 F.2d                                                       ___ ______          at 915; United States v.  Daniels, 737 F. Supp. 111, 114  (D. Me.                  _____________     _______          1990).    The appellants  have  not  asserted jurisdiction  under          either  of those  statutes,  and they  have expressly  disclaimed          reliance on  section  2255.    Thus,  we  take  no  view  of  the          appropriateness vel non of any such potential remedies.                          ___ ___                                          10          jurisdictional), cert. denied, 469 U.S. 1165 (1985).                           _____ ______          III.  CONCLUSION          III.  CONCLUSION                    In this instance, all roads lead to Rome.  On one hand,          the  appellants did not perfect  timely appeals from the district          court's  denial of their  Rule 35(b)  motions, and,  hence, those          motions are  dead letters.   On the  other hand,  insofar as  the          appellants' postsentence  motions rest  on Rule 32,  simpliciter,          the district court lacked jurisdiction to consider them.7          Affirmed.          Affirmed.          ________                                        ____________________               7Of course, the district court should simply have denied the          Rule 32 motions  for lack of  jurisdiction, rather than  reaching          the merits of the  alleged Rule 32 violations.   Accordingly, its          comments, though insightful, should not be accorded binding force          or effect if further proceedings eventuate.                                          11                                       APPENDIX                                       APPENDIX                    Former  Criminal  Rule 35,  which  applies to  offenses          committed prior to November 1, 1987, provides in pertinent part:                         (a) Correction of  Sentence.  The  court                         (a) Correction of  Sentence.                    may correct  an illegal sentence at  any time                    and  may correct  a  sentence imposed  in  an                    illegal  manner  within  the   time  provided                    herein for the reduction of sentence.                         (b) Reduction  of Sentence.  A motion to                         (b) Reduction  of Sentence.                    reduce a  sentence may be made,  or the court                    may reduce a sentence without  motion, within                    120  days after  the  sentence is  imposed or                    probation  is  revoked,  or within  120  days                    after receipt  by  the  court  of  a  mandate                    issued  upon  affirmance of  the  judgment or                    dismissal of the appeal,  or within 120  days                    after entry  of any order or  judgment of the                    Supreme  Court denying  review of,  or having                    the  effect  of   upholding,  a  judgment  of                    conviction or probation revocation. . . .          Fed. R. Crim. P. 35.                    Criminal  Rule 32(c)(3)(D),  as applicable  to offenses          committed prior to November 1, 1987, provides that:                         If the comments of the defendant and the                    defendant's  counsel  or  testimony or  other                    information  introduced  by  them allege  any                    factual   inaccuracy   in   the   presentence                    investigation  report or  the summary  of the                    report or  part thereof, the court  shall, as                    to  each  matter  controverted,  make  (i)  a                    finding  as  to  the allegation,  or  (ii)  a                    determination  that  no finding  is necessary                    because the matter  controverted will not  be                    taken into  account in sentencing.  A written                    record  of  such findings  and determinations                    shall be  appended to and accompany  any copy                    of   the  presentence   investigation  report                    thereafter  made available  to the  Bureau of                    Prisons or the Parole Commission.          Fed. R. Crim. P. 32(c)(3)(D).                                          12
