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


1-31-2002

USA v. Motto
Precedential or Non-Precedential:

Docket 0-1106




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"USA v. Motto" (2002). 2002 Decisions. Paper 81.
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NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                             ___________

                             No. 00-1106
                             ___________


                     UNITED STATES OF AMERICA

                                 v.

                           VINCENT MOTTO,
                            a/k/a VINNY

                                            Vincent Motto,
                                                        Appellant

          _______________________________________________

          On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                  D.C. Criminal No. 99-cr-00075-2
                    (Honorable Stewart Dalzell)
                        ___________________


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          October 12, 2001

Before:   BECKER, Chief Judge, SCIRICA and GREENBERG, Circuit Judges

                     (Filed: January 31, 2002)
                           ______________

                          MEMORANDUM OPINION
                            ______________


SCIRICA, Circuit Judge.

     Vincent Motto pled guilty under a plea agreement to conspiracy to
distribute
controlled substances within one thousand feet of a protected location (21
U.S.C.   846),
money laundering (18 U.S.C.   1956(a)(1)(B)(I)) and filing a false
individual tax return
(26 U.S.C.   7206(1)). Motto was sentenced to 135 months' imprisonment
and 8 years'
supervised release. He was also fined $5,000 and assessed $200.
     On appeal, Motto contends the District Court erred in relying on
inaccurate
information in the Presentence Report resulting in a sentence greater than
the
government's recommendation. He also claims error under Apprendi v. New
Jersey, 530
U.S. 466 (2000). We will affirm.
                                I.
     After release from prison in July 1991, Vincent Motto started up a
drug
distribution conspiracy out of his home at 1943 South Jessup Street in
Philadelphia,
Pennsylvania. Over the course of the conspiracy, Motto supplied large
amounts of
marijuana and cocaine for resale to Louis Acciavatti and Vincent Vitola.
He also sold
cocaine to and purchased marijuana from Michael Cammarata. At times,
Motto would
have hundreds of pounds of marijuana stored at his South Jessup Street
residence and in
various parked cars in South Philadelphia.
     The District Court adopted the factual findings and sentencing
guideline
recommendations in the Presentence Report. Motto's initial offense level
was 28.
U.S.S.G.   2D1.1(c)(6). Two levels were added because the offense
occurred within
1000 feet of a protected area. U.S.S.G.    2D1.2(a)(1). Three levels were
added for
managing or supervising a conspiracy involving at least 5 people.
U.S.S.G.   3B1.1(b).
Three offense levels were reduced because Motto accepted responsibility.
U.S.S.G.
3E1.1. With an adjusted offense level of 30 and a Criminal History
Category of III, the
applicable sentence range was 121 to 151 months' imprisonment. Motto
stipulated to
having a prior felony drug conviction, which brought him under the
statutory mandatory
sentence of 120 months' to life imprisonment. 21 U.S.C.    841(b)(1)(B).
The District
Court imposed a 135 month prison term.
                               II.
     We lack jurisdiction to review the imposition of a sentence within
the applicable
guideline range, unless it is in violation of the law. 18 U.S.C.
3742(a). The District
Court imposed a mid-range sentence, finding, inter alia, Motto not
contrite (paragraphs
31, 89-95 of the Presentence Report). Motto asserts the District Court
reached this
conclusion in part because portions of paragraphs 90 and 91 were
inaccurate. But Motto
failed to raise these objections to the District Court. "It is well
established in this circuit,
and all others, that a sentencing court may rely on the facts set forth in
the presentence
report when their accuracy is not challenged by the defendant." U.S. v.
Watkins, 54 F.3d
164, 167 (3d Cir. 1995). See also U.S. v. Bregnard, 951 F.2d 457, 460
(1st Cir. 1991)
("[F]acts stated in presentence reports are deemed admitted if they are
not challenged in
the district court."). Sentencing judges have discretion under U.S.S.G.
5C1.1 to impose
any term of imprisonment within the defendant's applicable guideline
range. We see no
error in sentencing Motto to 135 months.
     Motto claims the District Court erred by not following Apprendi, 530
U.S. 466.
We disagree. In Apprendi, the Supreme Court held "[o]ther than the fact
of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt."
Apprendi, 530 U.S. at 490 (emphasis supplied). This is so because each
fact that can
change a defendant's potential punishment constitutes an "element" of the
crime, which
must be proved by a jury beyond a reasonable doubt. Applying a lesser
standard of proof
for elements of a crime would violate the defendant's Constitutional Due
Process rights.
But, "a District Court's sentence under the statutory maximum cannot be
constitutionally
objectionable under Apprendi." United States v. Williams, 235 F.3d 858,
863 (3d Cir.
2000), cert. denied, 122 S.Ct. 49 (2001).
     Motto pled guilty to 21 U.S.C.   841(a), which is punishable under
841(b). The
lowest maximum sentence prescribed under the section applicable (
841(b)(1)(B)) to the
attributable quantity of narcotics is 40 years' imprisonment. But the
statutory maximum
increases to life imprisonment if the defendant "commits such a violation
after a prior
conviction for a felony drug offense has become final." 21 U.S.C.
841(b)(1)(B).
Therefore, Motto's maximum sentence increased from 40 years to life
because he
stipulated to a prior final conviction for a felony drug offense. (App.
75) (Plea
Agreement    9(d)). With an adjusted offense level of 30 and a Criminal
History
Category III, his guideline range was 121-151 months' imprisonment    at
least 329
months less than the lower statutory maximum sentence under
841(b)(1)(B). The
District Court sentenced Motto in the middle of the range to 135 months'
imprisonment
at least 345 months less than the lower statutory maximum. Had Motto been
placed in
Criminal History Category VI (the highest category), his guideline range
would have
been only 168 to 210 months' imprisonment    still at least 270 months less
than the lower
statutory maximum penalty under    841(b)(1)(B).   In light of Williams, a
sentence of 135
months is not "constitutionally objectionable under Apprendi." 253 F.3d at
863.
                                III.
     For the foregoing reasons, we will affirm the judgment of the
District Court.
TO THE CLERK:

         Please file the foregoing opinion.




                                /s/    Anthony J. Scirica
                                      Circuit Judge
