                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1631




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 07-1631


                            UNITED STATES OF AMERICA

                                             v.

                            WAYNE STEPHEN FALCIGLIA,

                                                  Appellant




                      Appeal from the United States District Court
                         for the Western District of Pennsylvania
                        (D.C. Criminal Action No. 05-cr-00032E)
                      District Judge: Honorable Sean J. McLaughlin


                       Submitted Under Third Circuit LAR 34.1(a)
                                     June 5, 2008

              Before: AMBRO, CHAGARES and COWEN, Circuit Judges

                              (Opinion filed: June 17, 2008)




                                         OPINION


AMBRO, Circuit Judge

       Wayne Stephen Falciglia appeals his conviction for stealing firearms from a

licensed firearms dealer, a violation of 18 U.S.C. §§ 922(u) and 924(i)(1), resulting in a
102-month prison sentence. He raises three issues on appeal: (1) he did not knowingly

and voluntarily waive his Miranda rights before making incriminating statements; (2) the

District Court denied him his constitutional right to a defense; and (3) the Court

misinterpreted the federal Sentencing Guidelines in declining to grant a downward

departure in the calculation of the sentencing range considered in the actual sentence. We

affirm.

                            I. Jurisdiction and Standard of Review

          We have jurisdiction over the District Court’s final judgment pursuant to 28

U.S.C. § 1291. Any factual findings are binding on us unless they are clearly erroneous.

United States v. Jacobs, 431 F.3d 99, 104 (3d Cir. 2005). We have plenary review over

conclusions of law, such as the Miranda issue or interpretations of the federal Sentencing

Guidelines. See id. (Miranda issue); United States v. Wise, 515 F.3d 207, 217 (3d Cir.

2008) (sentencing issue). We review any claims that were not preserved in the District

Court for plain error. United States v. Rivas, 493 F.3d 131, 136 (3d Cir. 2007), cert.

denied, 128 S. Ct. 929 (2008).

                                            II. Merits

A. Voluntariness of the Miranda Waiver

          Falciglia first claims that a state police officer and federal law enforcement agents

misled him into giving incriminating statements when questioning him about the stolen

guns. By his account, the agents suggested he would receive a more lenient sentence in



                                                2
exchange for incriminating his accomplices. He argues that the officers told him that his

cooperation would be “helpful,” which he interpreted as meaning that any statements he

made would not be used against him but rather would be used against his coconspirators.

Our sister courts of appeals are uniform in holding that an officer may indicate that the

defendant’s statements could bring about leniency without violating Miranda. See,

e.g., United States v. Gaines, 295 F.3d 293, 299 (2d Cir. 2002) (“[T]here is no

inconsistency between the required warning that the defendant’s statement may be used

against him and a further statement that cooperation can help him. Both are true.”). But

see id. (noting “that unfulfillable promises or certain other misrepresentations made to a

suspect might render a confession involuntary because they overcome his desire to remain

silent.”). Thus, even if the agents had made promises, those promises did not render the

waiver involuntary.

       Considering the totality of the circumstances, Miller v. Fenton, 796 F.2d 598, 608

(3d Cir. 1986), we hold that Falciglia’s waiver of his Miranda rights was knowing and

voluntary. He was not under pressure during the brief interrogation in which he made

incriminating statements. Moreover, he had substantial experience within the criminal

justice system. We also agree with the District Court that nothing in a recorded phone

conversation between Faciglia and his wife (which he both seeks to suppress and to rely

upon, depending on the issue) supports his claim that his waiver was involuntary.




                                             3
B. Denial of the Right to a Defense

       Falciglia argues that the District Court denied him his Fifth Amendment right to a

defense by ruling that the prosecution could introduce an incriminating telephone

conversation between him and his wife as impeachment evidence. The District Court

ruled that this evidence could only be used in the event that Falciglia testified. He did not

testify. The Supreme Court has previously held that, where the District Court rules that

the prosecution can impeach a testifying defendant with evidence of a prior conviction

and the defendant does not thereafter testify, he has waived the right to challenge on

appeal the District Court’s ruling on impeachment. See Luce v. United States, 469 U.S.

38, 42 (1984) (“Because an accused’s decision whether to testify seldom turns on the

resolution of one factor, a reviewing court cannot assume that the adverse ruling

motivated a defendant’s decision not to testify.” (internal quotation marks and citations

omitted)). We have no way of knowing why Falciglia chose not to testify and whether the

prosecution would have used the impeachment evidence had he testified. In this context,

the waiver rule of Luce applies.

C. Sentencing

       Finally, Falciglia claims that the District Court erred by not granting a downward

departure. He asserts that he should have received credit for a sentence already

discharged—under U.S.S.G. § 5G1.3, Application Note 4, or § 5K2.23—because his

previously served sentence was imposed for conduct that was relevant to the charge in



                                              4
this case.1 Specifically, he argues that his possession of the stolen guns in New York

state, for which he served a 60-month sentence, was relevant conduct under U.S.S.G.

§ 1B1.3(a)(1)(A) to the firearm robbery in Pennsylvania because one of the same guns

was involved in both crimes. On this basis, he seeks a 60-month downward departure.

       The District Court properly denied the motion for a downward departure.

Possessing the guns in New York was not “the basis for an increase in the offense level in

[the] offense [before it],” which is a requirement for a downward departure based on

relevant conduct. U.S.S.G. § 5G1.3(b). As the District Court pointed out, Falciglia was

convicted of stealing 26 guns; he only claims that one of them was involved in the New

York offense. Moreover, U.S.S.G. § 5G1.3, Application Note 4, and § 5K2.23 provide

the option of a downward departure—they do not mandate it.

                                     *   *   *   *   *

       We thus affirm the judgment of the District Court.




   1
    After denying the motion for downward departure, the District Court then granted a
downward variance of 18 months from the statutory maximum sentence of 120 months.
The Government has not appealed the variance.

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