                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2002

USA v. Candalario
Precedential or Non-Precedential:

Docket 1-2872




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Recommended Citation
"USA v. Candalario" (2002). 2002 Decisions. Paper 179.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/179


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                                               NOT PRECEDENTIAL

             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                          No. 01-2872
                          ____________

               UNITED STATES OF AMERICA

                             v.

               FERNANDO CANDALARIO
               aka
               MUGSY

                        Fernando Candalario,

                                                                  Appellant
                          ____________

          Appeal from the United States District Court
            For the Middle District of Pennsylvania
                    D.C. No.: 00-cr-00091-1
           District Judge: Honorable Sylvia H. Rambo
                          ____________

    Submitted Under Third Circuit LAR 34.1(a) March 5, 2002

Before: SCIRICA, ROSENN, Circuit Judges, and WARD, District Judge.

                     (Filed March 12, 2002)
                          ____________

                            OPINION
                          ____________

ROSENN, Circuit Judge.
     Pursuant to a plea agreement in the United States District Court for
the Middle
District of Pennsylvania, the defendant, Fernando Candalario, pled guilty
to conspiring to
cause interstate travel in aid of drug trafficking, a violation of 18
U.S.C.   371 and to a
separate count of interstate drug travel in aid of drug trafficking in
violation of 18 U.S.C.
  1952. The pre-sentence investigation report disclosed a prior criminal
record on the
part of the defendant and the use of dangerous weapons in the commission
of the offense.
The defendant at sentencing objected to an enhancement of his sentence on
these grounds.
The District Court rejected the defendant's objections. It found that
under the Sentencing
Guidelines, defendant's base offense level should be increased two levels
pursuant to
U.S.S.G. 2D1.1(b)(1) based on defendant's use of dangerous weapons in the
commission of the offense.
     Considering the quantities of heroin and crack cocaine for which the
defendant
was responsible for distributing and the possession of dangerous weapons
in the
distribution, reduced by three levels for acceptance of responsibility,
defendant's total
offense level amounted to 39. His extensive criminal record placed him in
a category of
V, resulting in a criminal history of V. This brought him a guideline
imprisonment range
of 360 months to life. However, the statutory maximum sentence for the
two offenses is
10 years or 120 months. The District Court, accordingly, sentenced the
defendant to ten
years' imprisonment consisting of two consecutive five-year statutory
terms, three years'
supervised release, a $1000 fine, and a $200 special assessment. The
defendant timely
appealed. We affirm.
     On appeal, the defendant contends that the District Court erred in
adding two
points to the defendant's base offense level under the sentencing
guidelines based on a
determination that dangerous weapons were used by the defendant. He also
contends that
the Court erred in imposing three years' supervised release after the
court had already
sentenced the defendant to the maximum sentence allowed for the underlying
charges.
     According to the pre-sentence report, the defendant and his brother,
Mario,
operated an extensive heroin trafficking business in Lancaster and York
counties
throughout 1999. They also brokered transactions in crack cocaine,
distributing crack
that they received from Philadelphia and elsewhere. They also engaged in
direct drug
sales and employed as many as six "runners." Undercover investigators and
buys of
crack cocaine and heroin confirmed the existence of a broad heroin ring
that the
defendant supervised. The investigators were also informed that the
defendant and his
brother, Mario, were very violent and were known to carry knives and
handguns.
     Although the two-level enhancement under the Sentencing Guidelines
would have
no effect on the 120-month statutory maximum limit, the defendant requests
that we
direct the District Court to re-sentence him because the enhancement would
prevent him
from obtaining drug treatment while in prison. He wants that drug
treatment. He also
argues that the Government did not prove that he possessed dangerous
weapons in
connection with his drug activities. However, in addition to the
information regarding the
defendant's use of guns that was furnished to investigators, the defendant
implicitly
admitted in his phone conversation with the Probation Officer prior to his
sentencing that
he did use guns. The Probation Officer inquired of the defendant about
his use of guns, to
which he responded: "that goes with the territory." Moreover, the
Government seized a
gun from a co-conspirator, who informed the investigators that the
defendant carried
knives and handguns.
     There was also credible evidence that the defendant had stabbed a
customer who
owed him drug money. He was charged with that offense but the victim
withdrew the
charge in exchange for heroin and a sum of money. The defendant admitted
his
inclination for violence but attributed it to his frequent smoking of
"blunts"   marijuana-
packed cigars soaked in formaldehyde. The defendant's admissions and
other evidence
adequately support the District Court's two-level enhancement.
     As for the imposition of supervised release, the defendant contends
that this
requirement after he has served the maximum sentence is unfair and
improper. We think
not. First, the defendant acknowledges that the plea agreement informed
him that he
would be subject to a period of supervised release and that it would be in
addition to a
sentence of imprisonment. The imposition of supervised release is neither
unfair nor
improper. Supervision assists the defendant in complying with the law
upon his release
and may result in additional incarceration only if he commits another
offense or is
recalcitrant in complying with the terms of his supervised release. As
for its propriety, 18
U.S.C.   3583 authorizes the imposition of supervised release in addition
to the maximum
term of imprisonment provided for in the prohibition of the underlying
offense. United
States v. Jenkins, 42 F.3d 1370, 1371 (11th Cir. 1995).
     Accordingly, the judgment of conviction and sentence is affirmed.
TO THE CLERK:

Please file the foregoing opinion.



                                      /s/Max Rosenn
                                     Circuit Judge
