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UNITED STATES v. TROPIANO

June 30, 1995

UNITED STATES OF AMERICA against DANIEL M. TROPIANO, Defendant.


The opinion of the court was delivered by: JACK B. WEINSTEIN

 Jack B. Weinstein, Senior United States District Judge:

 I. INTRODUCTION

 II. FACTS AND PROCEDURAL HISTORY

 A. Events occurring prior to appeal

 B. Court of appeals opinion

 
1. § 5K2.0 departures
 
2. § 4A1.3 departures

 C. Additional facts proven on remand

 III. LAW

 A. Past versus future recidivism

 B. Relevance of other criminal acts

 C. Inconsistency with purposes of sentencing

 D. Inconsistency with Guidelines

 E. Inconsistency with Witte

 F. Remaining distinctions between horizontal and vertical departures after Witte

 G. Applying present court of appeals' rules, what can be considered under § 4A1.3?

 H. Applying present court of appeals' rules, what can be considered under § 5K2.0?

 I. Applying present court of appeals' rules, what can't the court consider?

 J. Conclusion on law

 IV. APPLICATION OF LAW TO FACTS

 A. Relevant conduct

 B. Criminal history

 V. CONCLUSION

 I. INTRODUCTION

 The defendant was convicted after trial of possessing vehicles with altered vehicle identification numbers (VINs). At sentencing, the court found that the defendant had committed a number of uncharged crimes. It weighed these acts, which reflected on both the character of the offense and the character of the offender, in determining the appropriate sentence.

 The court of appeals vacated the sentence and remanded. United States v. Tropiano, 50 F.3d 157 at 163, (2d Cir. 1995). Drawing a sharp distinction between two uses of other criminal acts under the Guidelines -- determining the vertical offense level under the "relevant conduct" provision and computing the horizontal "criminal history" category -- it held that the sentencing court had failed to clarify the factual basis for the former and to follow procedures required for the latter.

 Subsequently, the Supreme Court, in Witte v. United States, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (U.S. 1995), rejected the court of appeals' notion that there is a bright-line distinction between relevant conduct and criminal history. The view of the Court in Witte that the same findings may be relevant to both determinations -- reflecting a proper understanding of the holistic, rather than atomistic, factfinding required of sentencing judges -- is inconsistent with the Tropiano holding and cases on which it is based. Nevertheless, while awaiting reaction by the court of appeals to the Witte decision, this court resentences the defendant pursuant to the mandate.

 II. FACTS AND PROCEDURAL HISTORY

 A. Events occurring prior to appeal

 According to an informant, Tropiano arranged for cars to be stolen and then altered their VINs. Agents obtained a search warrant for two premises leased by Tropiano. In one, they found a Cadillac with an altered VIN, which they towed to an FBI garage. In the other, agents found another car with an altered VIN. Both cars had been stolen.

 Inside the Cadillac they found the original motor vehicle titles to two other cars; their VINs were the numbers used on the Cadillac and the other stolen car. The agents also found records reflecting a series of cocaine sales and material associated with cocaine dealing: a digital scale, a calculator, a grinder, assorted plastic envelopes, and boric acid and lydocade hypochloride (the usual cutting agents for cocaine). They also discovered a semi-automatic pistol and ammunition, as well as various forged documents.

 At Tropiano's trial, one of the defendants' cocaine customers, Philip Stines, testified that he obtained the re-VIN-ed Cadillac from Tropiano, who told him it had been stolen. Acting under the defendant's instructions, Stines insured the Cadillac, gave it back to Tropiano, reported it stolen, and collected the insurance proceeds. Stines gave $ 1,000 of the proceeds to Tropiano.

 Tropiano was found guilty of possessing two vehicles with altered VINs. 18 U.S.C. § 511(a). At sentencing, the government moved for an upward departure on the basis of the defendant's uncharged drug offenses and other criminal conduct.

 The court conducted a Fatico hearing. See United States v. Fatico, 458 F. Supp. 388 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073, 62 L. Ed. 2d 755, 100 S. Ct. 1018 (1980). Three witnesses testified for the government.

 An FBI agent, Pedro Ruiz, testified that the scale, calculator, plastic envelopes, grinder, and cutting agents found in the Cadillac's trunk were the tools of the trade of cocaine dealers. He concluded that the records in the Cadillac's trunk reflected the sale of over one kilogram of cocaine.

 Another FBI agent, Martin Finn, provided information about a stolen and retagged van recovered during the investigation of Tropiano. Finn recounted his interview with one of Tropiano's associates, Salvatore Marchese, who admitted to registering the stolen van for Tropiano in exchange for a $ 300 reduction of his cocaine debt. The title to this stolen van, in the name of Salvatore Marchese, was recovered from the trunk of the stolen Cadillac. Tropiano's drug records reflected numerous sales to "Sal."

 According to Tropiano's presentence report, his offense level was 16. On the basis of two prior convictions -- one for petty larceny and one for cocaine possession -- the report assigned him a criminal history category of III. Absent other considerations, this combination of offense level and criminal history category would require a sentence of 27-33 months. The court gave notice of the possibility of an upward departure.

 At sentencing, the court relied on the evidence proffered at the Fatico hearing in finding that Tropiano "was involved in a whole series of narcotics transactions" and that "the car deals were part of these transactions." The court then observed:

 
The Defendant is a confirmed recidivist. He's 25 years old, he's at the peak of his criminal career, and he has to be sentenced primarily for incapacitation because the court is convinced that he will continue with serious criminal conduct when he's out of prison.

 The court departed seven levels, to an offense level of 23, raising the sentencing range to 57-71 months. It sentenced Tropiano to 60 months' imprisonment -- the maximum permitted under the statute of conviction, 18 U.S.C. 511(a) -- plus three years' supervised release, a $ 50,000 fine, and a $ 50 assessment.

 B. Court of appeals opinion

 The court of appeals held that the sentencing court had "circumvented the strictures of a § 4A1.3 horizontal departure by treating criminal history concerns as aggravating circumstances that affect offense level under § 5K2.0." Tropiano, 50 F.3d 157, 1995 U.S. App. LEXIS 5513, at *16. In the Second Circuit, the court declared, distinctions between horizontal and vertical departures are to be strictly maintained, and "a 4A1.3 departure in the trappings of a 5K2.0 departure" is "improper[]." Id. at 159.

 1. § 5K2.0 departures

 According to the court of appeals,

 
Section 5K2.0 allows [a vertical] departure for misconduct not leading to conviction if the defendant committed acts "'related in some way to the offense of conviction . . . . '" United States v. Uccio, 917 F.2d 80, 86 (2d Cir. 1990) (quoting United States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990)). . . . Misconduct unrelated to the offense of conviction ...

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