been found guilty of all counts, the Court would have, at a minimum, sentenced defendant Chilli to the maximum sentence under the Guidelines of 151 months. Under the Guidelines, defendant Chilli would not have been eligible for parole and would have had to serve 128 months before his release from custody, well over the 120 months at which he will be eligible for parole under his present sentence. Thus, defendant Chilli has not been placed in a worse position than if he had gone to trial, but in a better one.
If, prior to trial, defendant Chilli had allocuted to all counts in which he was charged and been determined to have demonstrated "a recognition and affirmative acceptance of personal responsibility for his criminal conduct,"
however, his Guidelines sentence range would have been 97 to 121 months. Such a sentence range would have permitted his release from custody at a time earlier than his present parole date. These computations, however, overlook the fact that in light of Chilli's long standing and dominant role in the organized crime group charged in this indictment, the Court would have departed upwards from the Guidelines by at least two points, making his Guidelines sentence range at least 121 to 151 months. In the Court's view, Chilli would have considered such a departure as likely. Furthermore, for the plea entered into to have constituted acceptance of responsibility under the Guidelines, it would have required some acknowledgment by Chilli of his leadership of and control over the other persons charged, something to which the defendant did not allocute at the time of his plea. The Court is not convinced that Chilli would have clearly "demonstrated a recognition and affirmative acceptance of personal responsibility" for his RICO conduct, and concludes that Chilli's sentence is not inconsistent with, or greater than, what the Court would have ordered in a sentence under the Guidelines. Accordingly, Chilli's Rule 35 motion is denied.
B. Joseph Macaluso
As calculated by the Probation Office, the Guidelines would have required defendant Macaluso, if he had been convicted of all counts upon which he was charged, to have been imprisoned for 51 to 63 months. Upon a plea of guilty, his Guidelines sentence range would have been 41 to 51 months, provided he qualified for the acceptance of responsibility deduction of 2 points. Macaluso was sentenced to 12 years in prison based on his guilty pleas to (1) management of a very large gambling operation, and (2) the extension of credit with knowledge that collection could be effected by threats of violence. The gambling operation and its collection of credit mechanism were headed by known organized crime figures who were known to have the ability to see that such threats were carried out. Macaluso was a top manager of that operation and supervised a number of employees.
The Court is not convinced that Macaluso would have "clearly demonstrated a recognition and affirmative acceptance of personal responsibility" for his RICO conduct, and thus have been eligible for a deduction of two points under the Guidelines. Since the facts in the Probation Office Report indicate that Macaluso had made the decision to live his life as a member of this organized crime group, the Court would in all probability have departed upwards from the Guidelines. The Court, however, would not have utilized Guideline steps to depart upwards to the extent that the present sentence would require. Accordingly, defendant Macaluso's motion is granted in part. On reconsideration, the sentence is reduced to 96 months. If treated as an organized crime figure, as the Bureau of Prisons is likely to treat him, he should be releasable on parole after serving 64 months. This is about the same period of time as his release pursuant to a maximum sentence under the Guidelines of 63 months had the Court departed upwards by two points and determined not to award two points for acceptance of responsibility.
C. Alan Taglianetti
As calculated by the Probation Office, the Guidelines would have required that defendant Taglianetti be imprisoned for 46 to 57 months after being found guilty at trial of the six counts with which he was charged. If, under the Guidelines, he had pleaded guilty to all counts and received credit for acceptance of responsibility, his Guidelines sentence range would have been 37 to 46 months. As a person who decided to live his life as a member of an organized crime group, he too would have received a sentence at the top of the Guidelines range. Since his role in the group was less substantial than Chilli's or Macaluso's, the Court would probably not have departed upwards. The Court is not convinced that Taglianetti would have "clearly demonstrated a recognition and affirmative acceptance of personal responsibility" for all his RICO conduct as charged and thus been entitled to the two point deduction. Accordingly, it does not conclude it would have deducted two points. Under a Guidelines sentence on all counts with which he had been charged, a 57 month sentence would have been imposed, and Taglianetti would have been eligible for release in 48.45 months. Thus, if he had been sentenced under the Guidelines as guilty of all counts, he would have served a slightly longer period than under the Court's actual sentence of six years under which, if he is treated by the Bureau of Prisons as an organized crime figure, he will be eligible for release on parole after serving 48 months. Accordingly, his motion is denied.
IT IS SO ORDERED.
Dated: New York, New York
February 4, 1992
ROBERT P. PATTERSON, JR.