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


4-24-2006

USA v. Pennavaria
Precedential or Non-Precedential: Precedential

Docket No. 04-3556




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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1173


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                                                 PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 04-3556


                UNITED STATES OF AMERICA,

                                            Appellant,

                                 v.

                   THOMAS PENNAVARIA,
                       a/k/a TOMMY




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                    (D.C. No. 02-cr-00172-28)
            District Judge: Honorable Stewart Dalzell




            Submitted Under Third Circuit LAR 34.1(a)
                         March 2, 2006

    Before: SLOVITER and FUENTES, Circuit Judges, and
                   RESTANI,* Judge.

                      (Filed: April 24, 2006 )




      *
        Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
                  _______________________

                  OPINION OF THE COURT
                  _______________________

FUENTES, Circuit Judge.

        The Government appeals Thomas Pennavaria’s 46-month
prison sentence for money laundering conspiracy and substantive
money laundering.       The Government seeks a remand for
resentencing pursuant to United States v. Booker, 543 U.S. 220
(2005), arguing that the District Court erred when it refused to
increase Pennavaria’s sentence on the basis of judge-found facts.
In response, Pennavaria contends that his sentence was lawfully
imposed and that a remand for resentencing would violate the ex
post facto principles of the Due Process Clause. For the reasons
stated below, we will vacate Pennavaria’s sentence and remand the
case for resentencing under Booker.

                        I. Background

       Thomas Pennavaria operated a car lot, J&B Motorcars
(“J&B”), in Murraysville, Pennsylvania, near Pittsburgh. Between
January 30, 1998, and July 24, 2001, Pennavaria used J&B to
conduct money laundering transactions with various co-
conspirators. Specifically, Pennavaria obtained already-leased
luxury vehicles in exchange for his assurance that he would make
the required payments on the leases. Pennavaria then “sub-leased”
these luxury vehicles for a premium—including a substantial cash
down payment in addition to monthly payments—to members of a
massive cocaine and crack cocaine conspiracy based in
Philadelphia. The vehicles remained titled and registered in the
name of the original lessor, the original lessee, or one of
Pennavaria’s business names, such as J&B or Leasing Unlimited.
The “sub-lease” arrangements were hidden from both the original
lessor and the Commonwealth of Pennsylvania. Pennavaria’s co-
conspirators used these vehicles in Philadelphia for a variety of
drug transactions and related affairs, including drug-related
shootings.



                               2
       Pennavaria was indicted on October 24, 2002, along with 36
co-defendants. The 135-count indictment included charges for
cocaine and crack cocaine distribution conspiracy, in violation of
21 U.S.C. § 846; various drug offenses, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 860; use of telephones in
furtherance of drug crimes, in violation of 21 U.S.C. § 843; money
laundering conspiracy, in violation of 18 U.S.C. § 1956(h);
substantive money laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(B); and firearms offenses, in violation of 18 U.S.C.
§§ 924(c), 922(g), and 922(j). Pennavaria was charged only with
money laundering conspiracy and substantive money laundering.

         On April 14, 2004, Pennavaria entered a plea of guilty to all
counts, pursuant to a written plea agreement. At sentencing, the
District Court stated its view that the Supreme Court’s holding in
Blakely v. Washington, 542 U.S. 296 (2004), limited the facts
district courts could consider at sentencing to those found by a jury
beyond a reasonable doubt or admitted by the defendant. As a
result, the District Court refrained from making the factual findings
at Pennavaria’s sentencing that would have been necessary to
support the following recommendations included in Pennavaria’s
Presentence Investigation Report (“PSR”): a six-level increase in
the offense level for knowing that the laundered funds were the
proceeds of, or were intended to promote, an offense involving the
manufacture, importation, or distribution of a controlled substance;
two additional criminal history points for committing the offense
while on supervised release; and one additional criminal history
point for committing the offense less than two years after being
released from custody. The Government objected to the District
Court’s approach in a sentencing memorandum and at Pennavaria’s
sentencing hearing.

        Based on its interpretation of Blakely, the District Court
calculated a sentencing range of 37-46 months’ imprisonment, far
below the range of 84-105 months recommended by the PSR. The
Government objected to the District Court’s sentencing range
calculation and requested alternative sentencing findings in light of
the uncertainty created by Blakely. In response, the District Court
observed, “I will say that if the guidelines were not applicable at
all, that I would sentence here to at least double what I have

                                  3
imposed because of the incorrigibility of the defendant.” (App.
226.) Later in the proceedings, the District Court made the
following comments to Pennavaria:

       Well, you got a major league break on June 24th,
       2004, when the Supreme Court decided the Blakely
       case. And I’m obliged to follow the law. As it
       seems to me it requires me to do certain things, and
       I have done them here, which have benefitted you
       immensely.

               And I must tell you, Mr. Pennavaria, I’m
       troubled by it, because I do agree with what Ms.
       Winters has said. You are an intelligent man and
       you have three prior federal convictions. . . . And
       that troubles me very much. And you should know
       better. And while I’m not making any findings on
       this, I certainly heard the testimony of Mr. Isaacs, I
       think at least twice if memory serves me correctly in
       the various trials we have had heard here, and it was
       rather sorted [sic] it seems to me. So it’s not
       antiseptic, as counsel is doing his job, depicts it. It
       was not antiseptic at all.

(App. 225.) The District Court imposed a sentence of 46 months,
the top of the guidelines range. The Government filed a timely
notice of appeal.

                          II. Discussion

        The Government appeals the District Court’s sentence based
on the Supreme Court’s decision in United States v. Booker. This
Court has appellate jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. Because the Government preserved this error
before the District Court, we will review for harmless error. Fed.
R. Crim. P. 52(a). Harmless error is that which “did not affect the
district court’s selection of the sentence imposed.” Williams v.
United States, 503 U.S. 193, 203 (1992).

       In Booker, the Supreme Court held that, under the Sixth

                                 4
Amendment, “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.” 543 U.S. at 244. The Supreme Court therefore ruled that
the Federal Sentencing Guidelines were unconstitutional because
they required district courts to impose mandatory sentencing
enhancements based on facts found by the court alone. The Booker
remedial opinion addressed this constitutional infirmity by excising
18 U.S.C. § 3553(b)(1), which provided for the mandatory
application of the Guidelines, thereby rendering the Guidelines
“effectively advisory.” Id. at 245.

        In United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en
banc), we discussed the two types of claims generally presented by
direct appeals of sentences imposed prior to Booker: Sixth
Amendment claims challenging sentences enhanced by judicial
factfinding; and claims that the district court erroneously treated
the Guidelines as mandatory rather than advisory. With respect to
the latter claims, we explained that where a district court imposes
a sentence with the belief that the Sentencing Guidelines are
mandatory rather than advisory, plain error is established because
“prejudice can be presumed.” Id. at 165. We thus stated that
“[w]here an appellant raises a Booker claim and establishes plain
error . . . we will decide claims of error related to the conviction,
vacate the sentence, and remand for consideration of the
appropriate sentence by the District Court in the first instance.” Id.
at 166.

        Here, the District Court committed error when it treated the
Guidelines as mandatory rather than advisory. See Booker, 543
U.S. at 245 (holding that the Guidelines are “effectively advisory”).
As we stated in Davis, we presume plain error when a district court
imposes a sentence under a mandatory Guidelines scheme. Davis,
407 F.3d at 165. Accordingly, Davis instructs us to vacate
Pennavaria’s sentence and remand this case to the District Court
for resentencing in light of Booker.

      Pennavaria opposes a remand for resentencing, arguing that
the ex post facto principle of the Due Process Clause will be

                                  5
violated if he receives a sentence for pre-Booker conduct that is
above the maximum of the applicable Guidelines range established
by his admissions. According to Pennavaria, application of the
Booker remedy—i.e., resentencing under an advisory Guidelines
scheme—is unconstitutional because it would expose him to an ex
post facto increase in his maximum sentence from the 46 months
he received under the mandatory Guidelines as applied by the
District Court, to the maximum of 20 years per count under the
statute of conviction, 18 U.S.C. § 1956(a). Under this view, any
sentence above the 37-46 month Guidelines range, which the
District Court calculated without engaging in judicial fact-finding,
would constitute an ex post facto increase in the maximum
sentence and would violate Pennavaria’s due process rights. In
other words, Pennavaria contends that he is entitled to benefit from
Booker’s constitutional holding while avoiding the effects of its
remedial holding.

        The Ex Post Facto Clause of the Constitution prohibits
application of a law enacted after the date of the offense that
“inflicts a greater punishment, than the law annexed to the crime
when committed.” Calder v. Bull, 3 U.S. 386, 390 (1798).
Although the Ex Post Facto Clause, by its terms, applies only to
acts by the legislature and not the judiciary, the Supreme Court has
made clear that “limitations on ex post facto judicial decision-
making are inherent in the notion of due process.” Rogers v.
Tennessee, 532 U.S. 451, 456 (2001); see also Helton v. Fauver,
930 F.2d 1040, 1044-45 (3d Cir. 1991). The Rogers Court
explained that such limitations are derived from “core due process
concepts of notice, foreseeability, and, in particular, the right to fair
warning as those concepts bear on the constitutionality of attaching
criminal penalties to what previously had been innocent conduct.”
Rogers, 532 U.S. at 459.

        Pennavaria’s ex post facto argument fails for two reasons.
First, the Supreme Court in Booker clearly instructed that both of
its holdings should be applied to all cases on direct review. 543
U.S. at 268 (“we must apply today’s holdings—both the Sixth
Amendment holding and our remedial interpretation of the
Sentencing Act—to all cases on direct review”). Second,
Pennavaria had fair warning that participating in a money

                                   6
laundering conspiracy and engaging in substantive money
laundering was punishable by a prison term of up to 20 years under
18 U.S.C. § 1956(a). Pennavaria also had fair warning that his
sentence could be enhanced based on judge-found facts as long as
the sentence did not exceed the statutory maximum. For these
reasons, we join the other Courts of Appeals that have addressed
this issue and hold that application of Booker’s remedial holding
to cases pending on direct review does not violate the ex post facto
principle of the Due Process Clause. See United States v. Lata,
415 F.3d 107 (1st Cir. 2005); United States v. Vaughn, 430 F.3d
518 (2d Cir. 2005); United States v. Scroggins, 411 F.3d 572 (5th
Cir. 2005); United States v. Jamison, 416 F.3d 538 (7th Cir. 2005);
United States v. Wade, 435 F.3d 829 (8th Cir. 2006); United States
v. Dupas, 417 F.3d 1064 (9th Cir.), amended by 419 F.3d 916 (9th
Cir. 2005); United States v. Rines, 419 F.3d 1104 (10th Cir. 2005);
United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005); United
States v. Alston-Graves, 435 F.3d 331 (D.C. Cir. 2006).

                         III. Conclusion

      For the foregoing reasons, we will vacate the sentence and
remand this case to the District Court for resentencing in light of
Booker.




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