                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2006

USA v. Salerno
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3627




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3627




                           UNITED STATES OF AMERICA

                                           v.

                                MICHAEL SALERNO,

                                                Appellant




                      Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. Criminal Action No. 03-cr-00374)
                       District Judge: Honorable Joel A. Pisano


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 5, 2006

                    Before: RENDELL and AMBRO, Circuit Judges
                              BAYLSON,* District Judge

                           (Opinion filed December 13, 2006)




                                       OPINION



  *
    Honorable Michael M. Baylson, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
AMBRO, Circuit Judge

       Michael Salerno challenges the reasonableness of his sentence imposed for a tax

fraud conviction in the United States District Court for the District of New Jersey. He

argues that the Court erroneously denied his motion for a sentencing departure and

unreasonably sentenced him at the high end of the federal Sentencing Guidelines range

for his underlying offense. We review the sentence for reasonableness and, for the

reasons set forth below, affirm.

                                             I.

       We highlight only the facts relevant to our decision. In February 2005 Salerno

pled guilty to one count of an eighteen-count indictment for failing to collect or pay taxes

owed in violation of 26 U.S.C. § 7202, resulting in a tax loss to the Government of

$152,501. In return for his plea, the Government dismissed the remaining counts.

       Prior to sentencing, Salerno filed a motion for a sentencing departure. At

sentencing in July 2005, the District Court denied his motion and sentenced him to 21

months’ imprisonment, a supervised release term of three years, $3,000 in restitution

payments, four special conditions governing his future financial transactions, and a

mandatory $100 special assessment.

       Salerno appeals to us, asserting three claims. He argues that the District Court

should have sentenced him according to a lower offense level, it erred by denying his

motion for a downward departure, and it failed to consider all of the relevant sentencing



                                              2
factors of 18 U.S.C. ' 3553(a).1

                                               II.

         Since United States v. Booker rendered the Guidelines advisory, 543 U.S. 220, 245

(2005), we have clarified several times that sentencing is a three-step process, which

proceeds as follows:

                (1) Courts must continue to calculate a defendant's Guidelines
                sentence precisely as they would have before Booker.

                (2) In doing so, they must “formally rul[e] on the motions of
                both parties and stat[e] on the record whether they are
                granting a departure and how that departure affects the
                Guidelines calculation, and tak[e] into account [our] Circuit's
                pre- Booker case law, which continues to have advisory
                force.”

                (3) Finally, they are required to “exercise[ ] [their] discretion
                by considering the relevant [§ 3553(a)] factors” in setting the
                sentence they impose regardless whether it varies from the
                sentence calculated under the Guidelines.2

  1
   The District Court had subject matter jurisdiction over this case pursuant to 18 U.S.C.
' 3231. We have jurisdiction to review Salerno’s sentence for Areasonableness@ under 18
U.S.C. ' 3742(a)(1) and 28 U.S.C. ' 1291. See United States v. Cooper, 437 F.3d 324,
327B28 & n.4 (3d Cir. 2006).

  2
      Those factors are:
         (1) the nature and circumstances of the offense and the history and characteristics
         of the defendant;
         (2) the need for the sentence imposed—
                 (A) to reflect the seriousness of the offense, to promote respect for the law,
                 and to provide just punishment for the offense;
                 (B) to afford adequate deterrence to criminal conduct;
                 (C) to protect the public from further crimes of the defendant; and
                 (D) to provide the defendant with needed educational or vocational training,
                 medical care, or other correctional treatment in the most effective manner;

                                                3
United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (internal citations omitted). In

this context, we address Salerno’s arguments.

       Regarding whether the offense level calculation was too high, the record shows

that the Judge already considered Salerno’s acceptance of responsibility when

determining his offense level. The Judge determined the base offense at sixteen under the

Guidelines. See U.S.S.G. §§ 2T1, 2T4.1(F) (stipulating a base offense level of 16 for a

tax loss more than $80,000 but less than $200,000). He adjusted that level to 13 by

subtracting two points for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)

and an additional point for acceptance of responsibility upon motion by the Government

pursuant to U.S.S.G. § 3E1.1(b). Combined with a criminal history category of II for a

prior fraud conviction, the resulting Guidelines sentencing range was 15 to 21 months. In

short, the Judge properly considered Salerno’s acceptance of responsibility and calculated

his sentence accordingly, just as step one of the sentencing process requires.

       As to his second claim, Salerno fails to understand that “[w]e have no authority to

review discretionary denials of departure motions in calculating sentencing ranges.”


      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established forB
              (A) the applicable category of offense committed by the applicable category
              of defendant as set forth in the guidelines . . .;
      (5) any pertinent policy statement . . . issued by the Sentencing
      Commission . . . that . . . is in effect on the date the defendant is sentenced;
      (6) the need to avoid unwarranted sentence disparities among defendants with
      similar records who have been found guilty of similar conduct; and
      (7) the need to provide restitution to any victims of the offense.
18 U.S.C. ' 3553(a).

                                             4
United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006). Prior to Booker, when a

judge recognized his or her authority to depart but chose not to do so, we inferred that the

district court’s refusal to depart was discretionary. See, e.g., United States v. D’Angelico,

376 F.3d 141, 142 (3d Cir. 2004); United States v. Mummert, 34 F.3d 201, 205 (3d Cir.

1994). That continues post-Booker. See Jackson, 467 F.3d at 840 (“Pre-Booker law

regarding Guidelines departures . . . necessarily informs the sentencing process—for

district courts and for us.”) (citations omitted).

       Here, the departure denial was discretionary in that the Judge clearly recognized

his authority to depart, but chose not to do so. During the sentencing hearing, he

explicitly considered each of Salerno’s five theories upon which the departure motion

rested: his attempts to cooperate with the I.R.S., an extraordinary family situation, the

aberrant nature of his crime of conviction, the possibility of substituting community

confinement for imprisonment, and an overstated criminal history. The Judge observed

that Salerno had not, in fact, cooperated with the I.R.S., as he failed to submit corrected

tax returns pursuant to his promise in his plea agreement; his family situation was not

compelling because he was in the process of separating from his child’s mother and was

not the child’s only caretaker; his crime of conviction was not aberrant because he had a

prior criminal conviction for fraud; he did not satisfy the Guidelines requirements for

community confinement, which typically involved drug addiction and treatment

programs; and his criminal history category of II was not overstated because it merely



                                               5
reflected his previous felony conviction in state court for theft by deception. The Judge

concluded his review as follows:

              I do have the authority to engage in the downward departure
              or variance. I find for the reasons stated that the defendant
              has not established that this case . . . falls outside the
              heartland of cases which have been categorized under the
              guidelines. Using the guidelines as an advisory source and
              taking into account the benefit of application notes and policy
              statements and the language of the guidelines itself, the
              motion is denied.

              We, therefore, will sentence Mr. Salerno with criminal history
              category [II], level 13, with a guideline sentence range of 15
              to 21 months.

The Judge could not have signaled more clearly that he considered and denied the motion

for downward departure as an exercise of his discretion. We therefore have no authority

to review his denial in calculating Salerno’s Guidelines range.

       As to the third claim, we have held that a reasonableness review requires a

demonstration that the District Court gave meaningful consideration to the “relevant

[' 3553(a)] factors.” Cooper, 437 F.3d at 329 (emphasis added); see also Gunter, 462

F.3d at 247; King, 454 F.3d at 194. Courts need not state on the record and discuss each

factor. Cooper, 437 F.3d at 329 (quoting United States v. Scott, 426 F.3d 1324, 1329

(11th Cir. 2005)). It is enough that they “observe the requirement to state adequate

reasons for a sentence on the record so that [we] can engage in meaningful appellate

review.@ King, 454 F.3d at 196B97; see also Jackson, 467 F.3d at 842; United States v.

Charles, 467 F.3d 828, 831 (3d Cir. 2006).

                                             6
       Here, the Judge stated that “the sentencing statute has a number of factors and I

take them into account.” Without naming the statutory subdivision for each factor, he

then proceeded to address § 3553(a) factors (1), (2) and (4), relating to the nature and

circumstances of the offense along with Salerno’s history and personal characteristics, the

penological goals that a reasonable sentence should serve, and the Guidelines range

sentence. In considering those factors, the Judge noted that the offense was a “substantial

fraud . . . that took place over a period of time,” that Salerno had engaged in the same

type of criminal conduct before (for which he had failed to make restitution), that he had

not “complied with [his] plea agreement with respect to [his] efforts to file [his] past due

tax returns” or otherwise “performed in any way that would give [the Judge] a reason to

sentence [him] at the low end of the guideline range,” and that consideration of the public

interest demanded a sentence that would deter further fraudulent activities. The Judge

concluded: “[T]he only sentence I consider to be reasonable is the maximum term under

the plea. It’s a plea agreement that you negotiated.” In sum, not only did the Court

demonstrate that it considered the relevant § 3553(a) factors, but its reasoning also

satisfies us that it exercised its discretion to apply those factors reasonably.

                                          *    *    *

       The Court went “by the book” for steps one, two, and three of the post-Booker

sentencing process. It correctly determined the Sentencing Guidelines range, properly

exercised its discretion in denying Salerno’s motion for a downward departure in



                                               7
calculating his Guidelines range, and adequately considered the relevant § 3553(a) factors

in sentencing him at the maximum of that range. In this context, we hardly can say the

sentence imposed was unreasonable. We therefore affirm.




                                            8
