                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-1995

USA v Marrone & Paris
Precedential or Non-Precedential:

Docket 93-5738




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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                    No. 93-5738



              UNITED STATES OF AMERICA

                         v.

                   JOHN MARRONE,
                a/k/a JOHNNY MOOSE

                   JOHN MARRONE,
                                    Appellant



                    No. 93-5740



              UNITED STATES OF AMERICA

                         v.

                   MICHAEL PARIS,
                                    Appellant



  On Appeal from the United States District Court
          for the District of New Jersey
 (D.C. Criminal Nos. 92-cr-00171-6, 92-cr-00171-9)




             Argued:   January 24, 1995

          Before: SLOVITER, Chief Judge,
           LEWIS and WEIS, Circuit Judges

             (Filed February 23, 1995)
John C. Whipple (Argued)
Whipple, Ross & Hirsch
Parsippany, N.J. 07054

            Attorney for Appellant John Marrone

Richard F. X. Regan (Argued)
Hayden, Perle & Silber
Weehawken, N.J. 07087

            Attorney for Appellant Michael Paris

Faith S. Hochberg
United States Attorney
Leslie F. Schwartz (Argued)
Victor Ashrafi
Newark, N.J. 07102

            Attorneys for Appellee




                         OPINION OF THE COURT



SLOVITER, Chief Judge.



            John Marrone and Michael Paris appeal from sentences

imposed following their convictions on RICO and gambling

offenses.    They were indicted, tried, and convicted with six

other defendants, all of whom were associated with the Genovese

Crime Family (GCF).    Though all defendants appealed, this opinion

addresses only certain sentencing issues raised by Marrone and

Paris.1   Specifically, Paris argues that a RICO predicate act for


1
 . Finding no merit in any of the contentions raised by the
other defendants, we have today affirmed the convictions and
sentences of all the other defendants.
which he was previously convicted should not have been used as

the basis for added criminal history points.    In Marrone's case,

the predicate act was not used for criminal history points, but

to determine his status as a career offender.   He contends this

was improper.    We will discuss their contentions separately but

in one opinion because the legal issues overlap.

          We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742.   To the extent that defendants challenge the

district court's legal interpretation of the Sentencing

Guidelines, we exercise plenary review.   United States v.

Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990).

                                 I.

                  PARIS - CRIMINAL HISTORY POINTS

          The indictment charged that Paris was an "associate" of

the GCF, subordinate to defendant Salvatore Lombardi, a

"caporegime" in the GCF.   After a jury trial, Paris was convicted

on several counts, including conspiracy to conduct and

participate in the conduct of the GCF's affairs through a pattern

of racketeering activity, in violation of 18 U.S.C. § 1962(d)

(Count 1); conducting and participating in the conduct of the

GCF's affairs through a pattern of racketeering activity, in

violation of 18 U.S.C. § 1962(c) (Count 2); and various gambling

offenses not at issue in this appeal.

          Paris had been previously convicted for a predicate act

charged in Count 2.   Specifically, the indictment charged Paris

with an attempted bribery to which he pled guilty in New York

state court on February 26, 1992 and for which he was sentenced
to one to three years imprisonment.    In convicting Paris on Count

2, the jury found this predicate act proven by special

interrogatory.

            The district court did not factor the attempted bribery

into Paris' base offense level.    Instead, the court assessed

three criminal history points against Paris under U.S.S.G. §

4A1.1(a), which placed him in criminal history category II.       The

court then sentenced Paris to 57 months imprisonment running

consecutively to his state bribery sentence, followed by three

years supervised release, plus a fine of $7500 and a special

assessment of $250.

            In sentencing a RICO defendant, the district court must

apply "the offense level applicable to the underlying

racketeering activity" or an offense level of 19, whichever is

greater.    U.S.S.G. § 2E1.1.   The district court found that Paris'

underlying conduct, apart from the attempted bribery, resulted in

an offense level of 17, and therefore assigned him a base offense

level of 19.    The court also assessed a three level increase for

Paris' managerial and supervisory role, giving him a total

offense level of 22.

            In arriving at a defendant's criminal history, a

district court must add three criminal history points "for each

prior sentence of imprisonment" exceeding 13 months.     U.S.S.G. §

4A1.1(a).    The Guidelines define "prior sentence" as "any

sentence previously imposed upon adjudication of guilt . . . for

conduct not part of the instant offense."     Id. § 4A1.2(a)(1)

(emphasis added).    The commentary to section 4A1.2 explains that
a prior sentence is one "imposed prior to sentencing on the

instant offense . . . .   A sentence imposed after the defendant's

commencement of the instant offense, but prior to sentencing on

the instant offense, is a prior sentence if it was for conduct

other than conduct that was part of the instant offense."     Id. §

4A1.2, comment. (n.1).

          Paris argues that because the bribery was included as a

predicate act, it was part of the "instant offense" and therefore

should not have been the basis of criminal history points.2    The

district court was not persuaded that the bribery conduct should

be encompassed for sentencing purposes into the "instant offense"

and instead treated it as a prior sentence.   It relied on

commentary to section 2E1.1 (Racketeering) which discusses when

conduct is to be assigned to criminal history rather than to the

"instant offense."   Under that commentary, conduct charged as

part of the "pattern of racketeering activity" that was the

subject of an earlier conviction and sentence should be treated

as a "prior sentence" under section 4A1.2(a)(1) (referring to
instructions for Computing Criminal History) and not as part of

the "instant offense" if the defendant was convicted for that

conduct before the "last overt act of the instant offense."    See
U.S.S.G. § 2E1.1, comment. (n.4) (hereafter Application Note 4).3


2
 . Paris raises but does not fully develop this argument in his
brief. However, he joins in the arguments of his co-appellant
Marrone, who does develop the issue in the context of challenging
his classification as a career offender.
3
.   The full text of Application Note 4 provides:
           We are bound by "commentary in the Guidelines Manual

that interprets or explains a guideline . . . unless it violates

the Constitution or a federal statute, or is inconsistent with,

or a plainly erroneous reading of, that guideline."   Stinson v.

United States, 113 S. Ct. 1913, 1915 (1993).   We must therefore

determine whether Application Note 4, under which certain

sentences imposed for conduct underlying a RICO conviction are

treated as "prior sentences" for criminal history purposes, is

inconsistent with section 4A1.2(a)(1).

           In a series of cases, albeit in another context, we

have noted that Congress did not intend "RICO to be a substitute

for the predicate offense," but instead "intended to create

separate offenses for the predicate acts and the substantive RICO

charge."   United States v. Esposito, 912 F.2d 60, 63-64 (3d Cir.

1990), cert. dismissed, 498 U.S. 1075 (1991); see also United

States v. Grayson, 795 F.2d 278, 283 (3d Cir. 1986) ("Congress,

in enacting RICO, sought to allow the separate prosecution and

(..continued)
          Certain conduct may be charged in the count of
          conviction as part of a "pattern of racketeering
          activity" even though the defendant has previously been
          sentenced for that conduct. Where such previously
          imposed sentence resulted from a conviction prior to
          the last overt act of the instant offense, treat as a
          prior sentence under § 4A1.2(a)(1) and not as part of
          the instant offense. This treatment is designed to
          produce a result consistent with the distinction
          between the instant offense and criminal history found
          throughout the guidelines. If this treatment produces
          an anomalous result in a particular case, a guideline
          departure may be warranted.

U.S.S.G. § 2E1.1, comment. (n.4).
punishment of predicate offenses and a subsequent RICO

offense."), cert. denied, 479 U.S. 1054, 481 U.S. 1018 (1987);

United States v. Riccobene, 709 F.2d 214, 232 (3d Cir.) ("The

predicate offenses . . . are not themselves the RICO violation[;]

they are merely one element of the crime.   [RICO] does not

prohibit the commission of the individual racketeering acts.

Rather, it bans the operation of an on-going enterprise by means

of those acts."), cert. denied, 464 U.S. 849 (1983).

           Similarly, for criminal history purposes, the

Sentencing Commission has clarified that a RICO violation should

be considered separate from any previously convicted predicate

act.   See U.S.S.G. App.C, amend. 142 (Application Note 4 added

"to clarify the treatment of certain conduct for which the

defendant previously has been sentenced as either part of the

instant offense or prior criminal record").   Although a predicate

act constitutes an element of a RICO violation, the previously

convicted RICO offender is in effect a repeat offender who breaks

the law once by committing a predicate act and again by engaging

in a pattern of racketeering activity.   The Sentencing Commission

has declared that a repeat offender "is more culpable than a

first offender and thus deserving of greater punishment," and

that "[r]epeated criminal behavior is an indicator of a limited

likelihood of successful rehabilitation."   U.S.S.G. Ch.4, Part A,

intro. comment.

           The Commission accordingly provided that where a

defendant has previously been convicted for a RICO predicate act,

that conviction should be factored into the defendant's criminal
history score rather than the base offense level.   Cf. U.S.S.G. §

2D1.5, comment. (n.3) (if a conviction for engaging in a

continuing criminal enterprise in violation of 21 U.S.C. § 848 is

supported by conduct for which the defendant has previously been

sentenced, "[a] sentence resulting from a conviction sustained

prior to the last overt act of the instant offense is to be

considered a prior sentence under § 4A1.2(a)(1) and not part of

the instant offense").

          Apparently no appellate court has addressed this issue

in an opinion in the RICO context.   However, in United States v.

Crosby, 913 F.2d 313, 315 (6th Cir. 1990), the court sustained

the Commission's approach in the context of the guideline on

continuing criminal enterprise, saying: "If a conviction occurs

while the criminal enterprise is continuing, a court should

include the sentence resulting from that conviction in the

criminal history for calculating the sentence for involvement in

a continuing criminal enterprise. . . . The sentencing guidelines

reflect the unique nature of a continuing criminal enterprise by

including prior sentences in the defendant's criminal history,

even if the prior sentences are for crimes committed in

furtherance of the continuing criminal enterprise."   Cf. United
States v. Minicone, 960 F.2d 1099, 1111 (2d Cir.) (government

unsuccessful in arguing that district court erred in assessing

prior conviction of RICO defendant only in calculating criminal

history and not in calculating base offense level; "district

court reasonably construed Note 4 to mean that the conduct

underlying the previously imposed sentence should not be used in
calculating the base level for the instant [RICO] offense"),

cert. denied, 112 S. Ct. 1511, 113 S. Ct. 199 (1992).

           The Commission's treatment of the prior conviction for

a RICO predicate act, reflected in its commentary in Application

Note 4, avoids the anomaly of treating a RICO defendant with a

previous conviction for conduct that is part of a continuing

pattern of racketeering activity as a first offender with a

criminal history category of I.4   Admittedly, the Sentencing

Commission could have amended the guidelines to achieve the same

result.   It was, however, equally free to amend the commentary

"if the guideline which the commentary interprets will bear the

construction."   Stinson, 113 S. Ct. at 1919.

           Application Note 4 constitutes an interpretation of the

RICO guideline that "may not be compelled by the guideline text"

but is nonetheless "not plainly erroneous or inconsistent" with

section 4A1.2(a)(1).   Stinson, 113 S. Ct. at 1920 (quotation and

citation omitted).    We are therefore bound to accept Application

Note 4 as written.5

4
 . To be sure, absent Application Note 4 the previously
convicted conduct would be factored into the RICO defendant's
base offense level. However, here as in most cases, the increase
in criminal history score resulting from Application Note 4
produces a higher guideline range than would the incorporation of
the previously sentenced conduct into the base offense level.
5
 . Effective November 1, 1993, the Sentencing Commission amended
the commentary to section 4A1.2 to state, "Conduct that is part
of the instant offense means conduct that is relevant conduct to
the instant offense under the provisions of § 1B1.3 (Relevant
Conduct)." U.S.S.G. § 4A1.2, comment. (n.1) (Nov. 1993).
Marrone argues that this brings section 4A1.2 into conflict with
Application Note 4. We do not so read it. Instead, Application
Note 4 represents the Commission's permissible construction of a
           Neither United States v. Hallman, 23 F.3d 821 (3d Cir.)

cert. denied, 115 S. Ct. 216 (1994), nor United States v. Kenyon,

7 F.3d 783 (8th Cir. 1993), compel a contrary result.   In

Hallman, we held that a state conviction for forgery could not

count as a prior sentence under section 4A1.2(a)(1) because it

was "part of a common scheme and plan" including the instant

offense of possession of stolen mail, where all of the stolen

mail was in the form of checks or credit cards and the forged

check underlying the state conviction was from a sequence of

checks found within the stolen mail.   See Hallman, 23 F.3d at

826.   Because Hallman was not a RICO defendant who participated

in a pattern of racketeering activity apart from any single

predicate act, reducing his criminal history score neither

implicated Application Note 4 nor contravened the policy of the

criminal history guideline.

           In Kenyon, on which Paris and Marrone both rely, the

defendant pled guilty in state court to possession of cocaine and

in federal court to conspiracy to possess cocaine with intent to

distribute.   The court held that it was error to count the state

conviction toward Kenyon's criminal history score because the

conduct underlying the state conviction "comprise[d] part of the

conduct" and was "part of the same criminal scheme" for which he

was convicted in federal court.   Kenyon, 7 F.3d at 787.     Like



(..continued)
defendant's criminal history in the unique context of a RICO
offense.
Hallman, however, Kenyon was not charged with participating in a

pattern of racketeering activity as defined in RICO.

          Paris argues in the alternative that Application Note 4

does not apply by its own terms because his bribery sentence did

not result "from a conviction prior to the last overt act of the

instant offense."    U.S.S.G. § 2E1.1, comment. (n.4).   He notes

that he pled guilty to the bribery in state court on February 26,

1992, which was after the date of the last overt act charged in

the indictment (February 17, 1992).   See App. at 182-83.

However, Application Note 4 refers to the last overt act of the

offense, not the last act charged in the indictment, and the

district court found that the last overt act of the offense,

Marrone's purchase of a silencer from an undercover officer,

occurred on March 18, 1992, after Paris' guilty plea.    His

bribery conviction thus properly falls under Application Note 4,6

and the district court did not err in treating it as part of

criminal history.7

6
 . In the district court and at oral argument in this court,
Paris argued that Marrone's purchase of a silencer was not
chargeable to him because it was not reasonably foreseeable. He
did not make this argument in his brief and therefore may have
waived it. In any event, Application Note 4 does not refer to
the last act chargeable to the defendant, and Paris has cited no
authority to support such a requirement.
7
 . We find no merit in Paris' other arguments that (1) the
judgments of conviction as to Count 1 must be vacated and
reversed because the government failed to adduce sufficient
evidence connecting him to the RICO conspiracy and to the RICO
enterprise; (2) the district court erred in assessing him a
three-level upward adjustment for "aggravating role" under
U.S.S.G. § 3B1.1(b); (3) the district court erred in refusing to
allow a two-level downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1; and (4) the district court
                                II.

                 MARRONE-CAREER OFFENDER STATUS

          Marrone also argues that the district court erred in

its treatment of his prior sentence, in his case for arson, which

he contends was part of the "instant offense."    Unlike Paris,

whose prior sentence was used as the basis to add criminal

history points, the arson sentence was used in Marrone's case to

classify him as a career offender.

          The indictment charged that Marrone was a "made member"

of the GCF, subordinate to Salvatore Lombardi.    After the jury

trial, Marrone was convicted on several counts, including

conspiracy to conduct and participate in the conduct of the GCF's

affairs through a pattern of racketeering activity, in violation

of 18 U.S.C. § 1962(d) (Count 1); conducting and participating in

the conduct of the GCF's affairs through a pattern of

racketeering activity, in violation of 18 U.S.C. § 1962(c) (Count

2); and various gambling offenses not at issue in this appeal.

          One of the predicate acts charged in Count 2 against

Marrone was a 1982 arson for which he was sentenced in a New

Jersey state court in 19858.   In convicting Marrone on Count 2,

the jury found this predicate act proven by special

interrogatory.
(..continued)
erred in declining to reduce his guideline sentence for time
spent in jail prior to the commencement of his sentence under
U.S.S.G. § 5G1.3(b) or by way of a downward departure pursuant to
U.S.S.G. § 2E1.1, comment. (n.4), and U.S.S.G. § 5K2.0, p.s.
8
 . The presentence report does not state when Marrone was
convicted for the arson, though it occurred after the
commencement of the conduct charged as RICO in the indictment.
           As in the case of Paris, the district court did not

factor the arson into Marrone's base offense level.   Instead, the

court relied on his arson conviction, as well as an unrelated

earlier conviction for using extortionate means to collect an

extension of credit in violation of 18 U.S.C. § 894, to classify

him as a career offender under U.S.S.G. § 4B1.1 (Nov. 1992).     The

district court then sentenced Marrone to a total of 293 months

imprisonment, followed by three years supervised release, and a

special assessment of $350.

           A defendant is a career offender if (1) the defendant

was at least eighteen years old at the time of the instant

offense; (2) the instant offense is a felony that is a crime of

violence or a controlled substance offense; and (3) the defendant

has "at least two prior felony convictions" of a crime of

violence or a controlled substance offense.   U.S.S.G. § 4B1.1.9

To have two prior felony convictions, the defendant must have

"committed the instant offense subsequent to sustaining" the two

convictions, and the sentences for the two convictions must be

"counted separately under the provisions of § 4A1.1(a), (b), or

(c)."   Id. § 4B1.2(3).




9
 . A career offender's offense level is the greater of the
offense level applicable to the underlying conduct or the
appropriate offense level specified in section 4B1.1. A career
offender automatically receives a criminal history category of
VI. U.S.S.G. § 4B1.1. Here, the district court assigned Marrone
a total offense level of 33, two levels lower than that
calculated in the presentence report but still greater than the
relevant level under § 4B1.1.
           Marrone argues first that his designation as a career

offender was improper because the 1982 arson cannot be used as a

"prior conviction" under section 4B1.1, which he notes is to be

governed by section 4A1.2(a)(1).    In effect, he would have us

disregard Application Note 4 to section 2E1.1, the racketeering

guideline.   In our discussion of Paris' sentencing we have

already rejected the argument made by Marrone that Application

Note 4 is inconsistent with section 4A1.2(a)(1).    We have

concluded instead that Application Note 4 is a permissible

interpretation of the guidelines applicable in the specific

context of RICO.   Therefore, we agree with the government that a

prior conviction for a predicate act can increase a RICO

defendant's criminal history score.

           Marrone's argument seems to be predicated on the

assumption that the "two prior felony convictions" referred to in

U.S.S.G. § 4B1.1 which are necessary before the defendant is

designated as a career offender must be separate from the

"instant offense."   That assumption is mistaken.   Although

section 4B1.2 defines "two prior felony convictions" under the

career offender guideline to mean that the sentences of at least

two such convictions are "counted separately," it does not

mandate that these convictions must have resulted from "conduct

not part of the instant offense."     Instead, "the sentences that

must be separate in this sense are the sentences imposed for the

prior convictions . . . .   The two prior convictions must be

separate from each other," not necessarily from the instant

offense.   United States v. Belton, 890 F.2d 9, 10-11 (7th Cir.
1989) (permitting state conviction that "punished conduct . . .

part of [the instant] offense" to serve as predicate felony for

career offender guideline).    Here, Marrone's two prior

convictions were separate from each other and he does not contend

otherwise.

            Moreover, as the Belton court recognized, classifying a

defendant as a career offender because of conduct related to the

offense of conviction is consistent with the policy of the career

offender guideline.    See Belton, 890 F.2d at 10 ("Continuing to

participate in a drug conspiracy after having been convicted of a

drug offense manifests a propensity for recidivism as plainly as

if the conspiracy had been started from scratch.").    A career

offender is "incorrigible, undeterrable, recidivating, [and]

unresponsive to the 'specific deterrence' of having been

previously convicted," id., an accurate description of Marrone,

who continued to participate in racketeering activity despite his

convictions for extortion and arson.

             Marrone next argues that his designation as a career

offender was improper because the "instant offense" was not

committed subsequent to his arson conviction as required by

section 4B1.2(3) if it is to be used for career offender

purposes.    However, his RICO conduct, i.e. the "instant offense,"

continued well past his arson conviction, and "continued

participation in a conspiracy [or RICO offense] after a felony

conviction renders that conviction a prior felony conviction" for

purposes of career offender sentencing.    United States v. Elwell,
984 F.2d 1289, 1298 (1st Cir.), cert. denied, 113 S. Ct. 2429
(1993).   See also Belton, 890 F.2d at 10 ("[T]he 'subsequent'

offense need not be entirely subsequent to preserve the relation

between the [career offender] guideline and its animating policy

of punishing the recidivist more severely.").

          We find no error in the district court's designation of

Marrone as a career offender.10

                                  III.

                            CONCLUSION

          For the foregoing reasons, we will affirm the judgments

of conviction and sentences of Michael Paris and John Marrone.




10
 . We find no merit in Marrone's additional arguments that
(1) the district court should have ordered a detailed bill of
particulars due to the lack of specificity of the pleading of the
Count 1 racketeering acts, and (2) there was insufficient
evidence to support the jury's finding of proven on racketeering
act 6(a) of Count 1 and racketeering act 4 of Count 2.
