                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1059




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                   Case No: 03-1059
                                    ____________

                           UNITED STATES OF AMERICA

                                            v.

                                DEAN PARASCONDA,

                                            Appellant
                                         _____

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                                   No. 01-CR-223

                    District Judge: The Honorable Sylvia H. Rambo
                                      __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 3, 2003
                                    __________

      Before: McKEE, SMITH, Circuit Judges, and HOCHBERG*, District Judge

                                 (Filed June 13, 2003)

                                     ____________

                                       OPINION
                                     ____________


*Honorable Faith S. Hochberg, United States District Judge for the District of New
Jersey, sitting by designation.
SMITH, Circuit Judge

                      I.   FACTS AND PROCEDURAL POSTURE

       From July 1996 through March 1998, appellant Dean Parasconda was part of a

criminal conspiracy to sell vehicles with falsified Certificates of Title. The members of

the conspiracy purchased high-milage vehicles, rolled back the odometers, forged false

ownership and milage information on the Certificates of Title, transported the titles to the

Pennsylvania Department of Transportation (“Penn DOT”), “washed” the titles through

Penn DOT and sold the vehicles. Parasconda purchased 35 of the 408 vehicles involved

in the conspiracy while using a fictitious name, created receipts for these purchases and

transported the paperwork from Pennsylvania to New York to be falsified, and returned

the paperwork to Pennsylvania.

       On October 24, 2001, Parasconda pleaded guilty to a two-count information

charging him with aiding and abetting in the transport in interstate commerce of falsified

Certificates of Title for motor vehicles in violation of 18 U.S.C. §§ 2 and 2314, and

conspiracy to commit the same in violation of 18 U.S.C. § 371. In his plea agreement,

Parasconda acknowledged causing a loss of no more than $120,000, but reserved the right

to show that the loss was as low as $30,000. He also agreed to make full restitution

according to a schedule to be determined by the Court.

       A sentencing hearing was conducted on December 17, 2002. The Court found that

the total amount of loss caused by Parasconda with respect to the 35 cars was $44,507. As


                                             1
a result, Parasconda’s base offense level of 6 under U.S. Sentencing Guidelines Manual

(“U.S.S.G.” or “Sentencing Guidelines”) § 2F1.1 (1997)1 was increased 5 levels. A two

level increase was imposed under § 2F1.1(b)(2)(A) and (B) because the offense involved

more than one victim and more than minimal planning. This adjustment was offset by a

two level reduction for acceptance of responsibility under § 3E1.1(a). The Court

therefore calculated a total offense level of 11 and a criminal history category of I, with a

sentencing range of eight to fourteen months and a fine range of $2,000 to $20,000. The

District Court then sentenced Parasconda to eight months imprisonment on each count, to

be served concurrently, a fine of $10,000 on each of the two counts, a special assessment

of $100 on each count and a term of supervised release of two years. The Court ordered

payment of the fine in an installment of $5,000 to be paid within six months, followed by

minimum monthly installments of $100 during the term of supervised release. The Court

declined to order restitution.

                                     II. JURISDICTION

       The District Court had jurisdiction over the criminal case pursuant to 18 U.S.C. §

3231. We have jurisdiction over the appeal from sentencing pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a).

                                 III. STANDARD OF REVIEW


  1
    Because use of the 2002 Sentencing Guidelines at sentencing would have created an
ex post facto issue, the District Court used the 1997 manual. All references to the
Sentencing Guidelines are to that manual.

                                              2
         We review objections that were not made contemporaneously at sentencing for

plain error. See United States v. Olano, 507 U.S. 725, 732 (1993). Otherwise, we review

the District Court’s legal conclusions on the Sentencing Guidelines de novo, and review

factual findings under the clearly erroneous standard. See United States v. Isaza-Zapata,

148 F.3d 236, 237 (3d Cir. 1998); United States v. Seale, 20 F.3d 1279, 1284 (3d Cir.

1994).

                                 IV.   LEGAL ANALYSIS

         A. The Imposition of a $20,000 Fine

         Section 5E1.2(a) of the U.S. Sentencing Guidelines Manual states: “The court shall

impose a fine in all cases, except where the defendant establishes that he is unable to pay

and is not likely to become able to pay any fine.” Section 5E1.2(d)(1)-(7) requires that in

determining the amount of the fine the court consider factors such as the need for

punishment and deterrence, the defendant’s ability to pay, the burden the fine places on

the defendant and his dependants, any restitution or reparation by the defendant, collateral

consequence of conviction, whether the defendant has previously been fined for similar

offenses, the expected costs to the government of probation and incarceration and any

other equitable considerations. Similarly, 18 U.S.C. § 3572(a) also requires the court to

consider “the defendant’s income, earning capacity, and financial resources,” “the burden

the fine will impose upon the defendant, any person who is financially dependent on the

defendant, or any other person (including the government) that would be responsible for


                                               3
the welfare of any person financially dependent on the defendant,” the pecuniary loss

inflicted on others as a result of the offense and whether restitution has been ordered or

made. 18 U.S.C. § 3572(a)(1)-(4).

       A district court must make a finding on the defendant’s ability to pay the fine.

United States v. Electrodyne Sys. Corp., 147 F.3d 250, 252 (3d Cir. 1998); United States

v. Seale, 20 F.3d 1279, 1284 (3d Cir. 1994). But “[w]here the court has created enough

of a factual record that it is clear that it considered a defendant’s ability to pay, its

findings may be deemed adequate.” Electrodyne, 147 F.3d at 255; Seale, 20 F.3d at

1284. We have plenary review over the sufficiency of a district court’s findings, and we

review the determination that defendant was able to pay a fine and the amount of the fine

for clear error. Seale, 20 F.3d at 1284. However, since the appellant did not object to the

District Court’s finding as to his ability to pay or the amount of the fine at the sentencing

hearing, we must review for plain error. See Fed. R. Crim. P. 52(b) (“plain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.”); Olano, 507 U.S. at 732.2 In a plain error analysis, the decision

to correct the forfeited error is “within the sound discretion of the court of appeals, and


  2
    An objection to the amount of the fine would have been timely at the sentencing
hearing after the amount of the fine was announced. See United States v. Fox, 140 F.3d
1384 (11th Cir. 1998); United States v. Monem, 104 F.3d 905, 911 (7 th Cir. 1997)
(reviewing fine amount for plain error where defendant “did not object to the imposition
of the fine at sentencing”). Parasconda did write a letter to the Court requesting a hearing
on his ability to pay the fine, but this letter was not entered into the docket until
December 19, and the judgm ent order was entered two days earlier - on December 17.

                                                4
the court should not exercise that discretion unless the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting United

States v. Young, 470 U.S. 1, 15 (1985)). Improperly imposing a fine or restitution can

constitute an illegal sentence which affects a substantial right and amounts to plain error.

See United States v. Diaz, 245 F.3d 294, 312 (3d Cir. 2001); United States v. Coates, 178

F.3d 681, 684 (3d Cir. 1999).

       Here, the District Court did not discuss Parasconda’s finances and merely stated

that it “adopts the factual findings in the guideline application in the pre-sentence report”

and “finds that the defendant has the ability to pay a fine.” Parasconda suggests that the

factual findings in the Pre-Sentence Report (“PSR”) do not support a conclusion that he is

able to pay a fine in the amount of $20,000, and points out that the PSR only recommends

a “minimal” fine.

       The government argues that since Parasconda admitted in his plea agreement to

causing a loss of approximately $30,000 3 and agreed to “make full restitution in

accordance with a schedule to be determined by the court” he implicitly admitted his

ability to pay a fine of $20,000 and the District Court did not have to make any factual

findings on ability to pay or consider the other factors in U.S.S.G. § 5E1.2(d) and 18

U.S.C. § 3572 relevant to deciding the amount of a fine. In Electrodyne, the parties


  3
    Specifically, the agreement stated that the amount of loss attributable to the defendant
“is no more than $120,000" and defendant reserved the right to “demonstrate that the
amount of loss is approximately $30,000."

                                              5
stipulated in the plea agreement that $140,000 was an appropriate fine, but the district

court imposed a one-million dollar fine. This Court stated: “[i]f the judge accepts the

negotiated fine, no detailed finding of ability to pay is necessary because the defendant

has implicitly acknowledged its ability by virtue of the agreement.” Id. at 254-55.

On its face, this situation is distinguishable from Electrodyne since Parasconda did not

agree to pay a stipulated fine amount but merely agreed to make “full” restitution.

However since the District Court declined to impose any restitution 4 , but only imposed a

fine, appellant’s promise to make full restitution for a loss that was larger than the amount

of the fine constitutes an admission of ability to pay and no factual finding was necessary.

Thus, the court did not commit plain error.

       B. Minor Participant

       Section 3B1.2 of the Sentencing Guidelines provides for a two-level reduction in

offense level if the defendant was a “minor participant” in the criminal activity and a four

level reduction in offense level if the defendant was a “minimal participant” in the

criminal activity. See U.S.S.G. § 3B1.2.      The guideline application notes state that “a

minor participant means any participant who is less culpable than most other participants

but whose role could not be described as minimal.” U.S.S.G. § 3B1.2, Application Note


  4
    The District Court declined to impose mandatory restitution because “determining
complex issues of fact related to the cause or amount of the victim’s losses would
complicate or prolong the sentencing process to a degree that the need to provide
restitution to any victim is outweighed by the burden on the sentencing process.” 18
U.S.C. § 3663A(c)(3)(B).

                                               6
3.

       A minor role adjustment is only available to a defendant involved in concerted

criminal activity with other participants, whose role is minor in comparison to those other

participants. See Isaza-Zapata, 148 F.3d at 238. In assessing eligibility for a minor role

adjustment, this Court has recommended that district courts apply the following three

factors to determine the defendant’s relative culpability:

       1) the nature of the defendant’s relationship to the other participants;
       2) the importance of the defendant’s actions to the success of the venture; and
       3) the defendant’s awareness of the nature and scope of the criminal enterprise.

United States v. Headley, 923 F.2d 1079 (3d Cir. 1991). It is defendant’s burden to prove

that he is entitled to the adjustment. See Isaza-Zapata, 148 F.3d at 240.

       In addition, this Court has noted that

       the mere fact that a defendant was less culpable than his co-defendants does
       not entitle the defendant to “minor participation” status as a matter of law . .
       . If this were the case, then the least culpable member of any conspiracy
       would be a minor participant, regardless of the extent of that member’s
       participation. We reject this approach because there are varying degrees of
       culpability present in virtually every criminal conspiracy.

United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001) (internal citations omitted).

       Because the District Court’s determination that Parasconda did not play a minor

role was prim arily factual in nature, we review it for clear error. See, e.g., United States

v. Perez, 280 F.3d 318, 351 (3d Cir. 2002). “A decision is clearly erroneous if the

reviewing court is left with the definite and firm conviction based on all the evidence that

the trial court made a mistake.” Id.

                                                7
        Here, the District Court had the following discussion with respect to a two-point

increase under Section 2F1.1(b)(2), which is given if the offense involved “more than

minimal planning or a scheme to defraud more than one victim.”

               With regard to the request that you not be assessed two points under
        guideline 2F1.1 because you allege his involvement was limited to simply
        purchasing the vehicles, he did purchase them, but it was necessary in this
        whole scheme of things that without his involvement the whole thing could
        not have come about.
               Also I would point out that you took the titles to New York to be
        altered after you bought them in Pennsylvania and then they were delivered
        to other conspirators, the washing through PennDOT. Also, there was more
        than one victim involved, and this was over a period of time.
               So I think that the two points, as well as your objection number three
        – excuse me – the two points are properly supported by the fact that there
        were acts over a period of time, you defrauded more than one victim, and it
        was necessary under the scheme of things that your participation was
        essential.
               I would point out in a case similar to this, that I decided in United
        States v. Johnson5 which was decided October 18, 2002, it is a
        nonprecedential opinion but the very same argument made by this
        defendant concerning his role in the offense, this Court was upheld by
        adding the two points for role in the offense.6

The District Court did not separately address the minor participant claim under U.S.S.G.

§ 3B1.2, but the following exchange took place between the government and defense

attorney: “Mr. Cecchi: Judge, in connection with the 2F1.1 adjustment for more than

minimal planning, we have resolved the issue of minor participant as well? The Court:



  5
      This refers to the case against appellant’s coconspirator, W esley C. Johnson.
  6
    Actually, this is a misstatement. This court did not uphold a two-point enhancement,
but rather upheld the district court’s refusal to award a two-point downward adjustment
for being a “minor participant.”

                                              8
Yes.”

        Parasconda argues that the District Court erred in confusing Sections 2F1.1(b)(2)

and 3B1.2, and in failing to assess his level of culpability with respect to the other co-

conspirators, or his knowledge of the scope of the conspiracy. Parasconda alleges that he

was a minor participant because he was “unaware of the exact logistics of the scheme,”

lacked “knowledge and understanding of the overall enterprise,” and his level of

culpability was much less than the other co-conspirators because he only purchased 35

cars, and the other conspirators actually altered the titles, rolled back the odometers,

washed the titles and sold the vehicles.

        Even though the District Court combined its discussion of the minimal participant

and minimal planning standards, reversal is not warranted since a district court does not

commit clear error by failing to explicitly address all the factors laid out in Headley. See

United States v. Carr, 25 F.3d 1194, 1208 (3d Cir. 1994). The District Court still found

that Parasconda’s actions were critical to the success of the venture and recognized that

he had some knowledge of the scope of the activities, since he brought the titles from

Pennsylvania to New York to be altered and then back to Pennsylvania to be “washed.”

        While a defendant whose actions are necessary for the success of a conspiracy can

still be a “minor participant”, the necessity of defendant’s actions combined with a

knowledge of the scope of the conspiracy generally precludes minor participant status.

Compare Zapata, 148 F.3d at 238 (holding that a legal interpretation of the guidelines


                                              9
which denies minor role adjustments to all drug couriers because they are “essential”

would be erroneous), with United States v. Perez, 280 F.3d 318, 352 (3d Cir. 2002) (no

clear error in denying a minor role reduction to defendants who knew of scope of

conspiracy and performed a different role than other co-conspirators but without which

“the conspiracy could not have succeeded”). In addition the fact that a defendant played a

smaller role than other co-conspirators does not prove that he is less culpable if he is

aware of the scope of the conspiracy. See Perez, 280 F.3d at 323-25, 352 (a defendant

who only housed a drug courier but was present at kingpin’s house when significant drug

transactions were taking place was not a minor participant because he was no less

culpable than other conspirators).

       Here, the fact that Parasconda was involved with only 9% of the cars and only

purchased those cars, rather than altering the titles or rolling back the odometers, does not

make his culpability so small in comparison to the other co-conspirators that he is clearly

entitled to “minor participant” status. Moreover, there is evidence suggesting that

Parasconda’s role was necessary to the conspiracy and that he had some knowledge of the

scope of the conspiracy. Therefore, because the evidence in this case does not leave us

with a definite and firm conviction that Parasconda was a minor participant, the District

Court’s conclusion was not clearly erroneous.

       C. Downward Departure for Extraordinary Medical Condition

       Section 5H1.4 of the U.S. Sentencing Guidelines Manual provides: “[A]n


                                             10
extraordinary physical impairment may be a reason to impose a sentence below the

applicable guideline range; in the case of a seriously infirm defendant, home detention

may be as efficient as, and less costly than, imprisonment.” Parasconda argues that the

District Court erred in its consideration of whether he was entitled to a downward

departure under Section 5H1.4. Specifically, Parasconda asks that we require the District

Court to take into account non-medical issues in determ ining whether to grant a 5H1.4

departure such as: his status as a first time offender who committed a non-violent crime,

that his family lives on his disability benefits, that his brother is living his final days in

search of a heart donor, and the fact that he is at risk of being victimized while in prison.

       The PSR stated that Parasconda was injured while working at the Fulton Fish

Market in 1991. He sustained serious damage to his shoulder, neck, back and knees,

which disabled him and required multiple surgeries and physical therapy. The Social

Security Administration awarded him permanent disability benefits based on its

conclusion that he was totally disabled. Parasconda also had hypertension, reflux disease,

a bleeding ulcer and suffered from persistent generalized anxiety, post-traumatic stress

and moderate-to-severe depression. Based on these diseases and injuries, Parasconda

requested that the court grant a downward departure under Section 5H1.4. The District

Court denied this request.

       Our jurisdiction to consider Parasconda’s argument that he is entitled to a

downward departure based on an extraordinary m edical condition depends on the basis


                                               11
for the District Court’s ruling. See United States v. Stevens, 223 F.3d 239, 247 (3d Cir.

2000); United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989); see also United

States v. Ruiz, 122 S.Ct. 2450, 2454 (2002) (noting that “[e]very Circuit has held that [18

U.S.C. § 3742] does not authorize a defendant to appeal a sentence where the ground for

appeal consists of a claim that the district court abused its discretion in refusing to

depart”). Where a district court’s ruling is based on the court’s belief that a departure on

the grounds proffered by the appellant is legally impermissible, we have jurisdiction “to

determine whether the district court’s understanding of the law was correct.” Stevens,

223 F.3d at 247 (citing United States v. Mummert, 34 F.3d 201, 205 (3d Cir. 1994)). We

lack jurisdiction to review a refusal to depart downward when the district court, knowing

it may do so, nonetheless determ ines that departure is not warranted. See United States v.

Hernandez, 218 F.3d 272, 281 (3d Cir. 2000); Stevens, 223 F.3d at 247; Denardi, 892

F.2d at 272. “If the district court’s stated reasons are ambiguous, so that the record does

not reflect whether the court’s denial is based on legal or discretionary grounds – then the

proper remedy is to ‘vacate the sentence and remand for the district court to clarify the

basis for its ruling.’” Stevens, 223 F.3d at 247 (quoting Mummert, 34 F.3d at 205).

       Here, the defense counsel repeatedly reminded the District Court that it had

discretion to depart and the Court did not say anything suggesting that it disagreed with

this statement. In denying the motion for downward departure, the Court stated: “The

Court has not granted a reduction for medical reasons. The Court believes that the federal


                                              12
penal institution can provide adequate care to the defendant. The Court will note in its

recom mendation to the Bureau of Prisons that special consideration be given to his

medical needs . . .” This demonstrates that the District Court recognized that it had the

legal authority to grant a further downward departure for an extraordinary medical

condition, but decided departure was not warranted. Thus we are without jurisdiction

to review the Court’s exercise of discretion.

                                     V.     CONCLUSION

       The District Court’s fine and sentence will be affirmed.




TO THE CLERK:

Please file the foregoing Opinion.




                                          /s/ D. Brooks Smith
                                          Circuit Judge




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