U.S. vs. Spano
UNITED STATES OF AMERICA, Plaintiff, v. PAUL SPANO,
Defendant.
Case No. 90 CR 87-17
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION
1992 U.S. Dist. 19779
December 23, 1992, Decided
December 29, 1992, Docketed
JUDGES: [*1] Williams
OPINIONBY: ANN CLAIRE WILLIAMS
OPINION: MEMORANDUM OPINION AND ORDER
On October 9, 1991, defendant Paul Spano pleaded guilty to Count 2 of the
superseding indictment which charged him with illegal gambling conspiracy in
violation of 18 U.S.C. @ 371. Defendant has brought a motion objecting to
various statements in the presentence investigation report (“PSI”) and the
probation officer’s determination that he should not receive a two point
reduction in his offense level for acceptance of responsibility. n1 Defendant
has also brought motions to exclude all references to juice loan racketeering
and withdraw his guilty plea. For the reasons stated below, this court denies
defendant’s motions to exclude references to juice loan racketeering and
withdraw his guilty plea. This court overrules defendant’s objections to the
PSI, except his objection to lines 85-99 of the PSI. These lines should be
stricken. This court also denies defendant’s request for a two point reduction
for acceptance of responsibility. Since defendant’s adjusted offense level is
12 and his Criminal History Category is I, the appropriate sentencing range in
this instance is 10-16 months.
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n1 The probation officer originally determined that defendant was entitled
to a reduction for acceptance of responsibility. See PSI at 4. However, upon
review of the government’s objections to this determination, the probation
officer determined that since the delivery of the PSI, defendant had falsely
denied relevant conduct and acted in a manner inconsistent with acceptance of
responsibility as defined in Sentencing Guideline @ 3E1.1. Therefore, the
probation officer now recommends that defendant not receive a reduction under
Section 3E1.1. See Addendum to Presentence Investigation Report (“Addendum”) at
1-2.
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[*2]
Background
From at least 1979 to 1990, defendant was an associate of members of an
organized crime group known as the Ferriola Street Crew. The crew’s
activities included the operation of various illegal gambling businesses, the
collection of interest on usurious or “juice” loans, the collect of protection
money or “street tax” from independent bookmakers, and the use of proceeds from
these activities to further the existence of the criminal enterprise and for
other business ventures.
From approximately 1970-1989, defendant owned and operated Flash Interstate
Delivery Systems, Inc. (“Flash”) in Cicero, Illinois. Defendant permitted this
business to be used by members of the crew as a base of operations and a message
center for its gambling operations. Crew leaders such as Joseph Ferriola and
Rocco Ernest Infelise met with other members of the crew’s gambling operation at
Flash. Moreover, telephones at Flash were used by Infelise and other crew
members to discuss their gambling business and leave messages for each other.
Defendant also hired Infelise as an employee, thus providing Infelise with a
legitimate source of income to report to the Internal Revenue Service (“IRS”).
[*3]
Defendant also permitted Infelise and others to use Flash’s safe as a
depository for proceeds from the crew’s gambling and “juice loan” operations. On
occasion, defendant removed gambling operation money from the safe and provided
it to others to settle-up wagers or for other purposes as directed by Infelise.
For example, on July 9, 1986, Infelise told defendant over the telephone to take
$ 5,000 in cash from envelopes marked “January” through “June” which had been
kept in the Flash safe, and deliver them to one of the crew’s longtime
supervisors and street tax collectors. On another occasion in 1986, defendant
gave defendant Frank Maltese $ 5,600 of his own money to cover settle-up money
for Maltese’s gambling customers which defendant Salvatore DeLaurentis had
failed to leave for Maltese at Flash as previously arranged. Defendant was
later reimbursed by the crew.
On December 3, 1986, IRS special agents searched Flash. During this search,
various bookmaking records were recovered. Six bundles of cash and numerous
envelopes marked with notations including “Bank,” “Nicky,” and “Chief,” and
filled with money were also found in Flash’s safe. In total, approximately $
125,000 was [*4] recovered from Flash’s safe.
In a consensually recorded conversation on September 1, 1989, defendants
Infelise and William Jahoda discussed this search and the source of the money
seized from the Flash safe. According to Infelise, he permitted defendant to
“earn every once in a while” by providing funds for the enterprise’s “juice
bankroll,” which would then be loaned out at exorbitant rates of interest such
as 5% per week. According to Infelise, approximately $ 12,000 of the seized
funds which were part of the “juice bankroll” belonged to defendant.
Finally, on September 8, 1989, Infelise left a bag containing $ 50,000 with
defendant at the premises previously occupied by Flash. n2 Pursuant to
Infelise’s instructions, defendant gave Jahoda the bag of money. This money was
the juice loan being given to Larry Weeks n3 to bribe a zoning commissioner to
facilitate a real estate development project near Lake Geneva, Wisconsin.
Defendant claims that he did not know what the bag contained.
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n2 By September 9, 1989, Flash had closed because it had gone into
bankruptcy and its premises had been leased to R and R Liquidators, a business
owned by defendants Infelise and Robert Bellavia. Defendant contends that he was
only on the premises on that date to gather documents and records for Flash’s
bankruptcy proceedings. [*5]
n3 In actuality, Larry Weeks was IRS special agent Lawrence Kaiser who was
participating in the investigation of this case.
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The Objections to the PSI and The Motion to Exclude References to Juice Loan
Racketeering
Defendant raises various objections to statements in the PSI. Defendant
argues that the following statement in the PSI regarding defendant’s “offense
conduct” is misleading. At lines 37-48, the PSI states:
As charged in Count Two of the indictment, from about 1979 through the date of
the indictment, the defendant knowingly conspired and agreed with others to
conduct, finance, manage, supervise, direct, and own all or part of an illegal
gambling business.
Defendant argues that this statement improperly suggests that he played a
significant and controlling role in the gambling operation when defendant only
permitted Infelise to use Flash to conduct gambling business, delivered one
package to Jahoda, and loaned $ 5,677 to DeLaurentis for the business on one
occasion. However, defendant’s plea agreement specifically states:
As charged in Count Two of the indictment, defendant [*6] acknowledges that:
during the period charged in Count Two the defendant agreed and conspired to
conduct and operate with others a gambling business in violation of the laws of
the State of Illinois.
Plea Agreement at 1-2. Since the disputed statement in the PSI is substantially
similar to the statement in the plea agreement, this court does not find that
the statement in the PSI is misleading or unfair as defendant suggests.
Therefore, defendant’s request to strike this statement is denied.
Defendant also objects to the PSI’s characterization of Infelise’s job at
Flash. Lines 110-115 of the PSI state:
[Defendant] related that when Joe Ferriola asked him to give codefendant Rocco
Ernest Infelise a job, he agreed to do so because Mr. Ferriola was his friend.
Lines 499-502 of the PSI also state:
Furthermore, the defendant provided the street crew’s leader, codefendant Rocco
Ernest Infelise with an apparently legitimate source of income, which helped to
conceal his criminal activity from law enforcement.
Defendant argues that these references improperly suggest that Infelise’s job at
Flash was a “sham.”
This court disagrees. Nothing in the PSI suggests that Infelise [*7] did
not actually work for Flash. The PSI merely indicates that by hiring Infelise to
work for him, defendant gave Infelise the legitimate source of income he
needed to help hide his involvement in the crew’s illegal gambling activity.
Moreover, as the government suggests, the disputed statements in the PSI do not
differ significantly from defendant’s admission in his plea agreement that “by
carrying Rocco Ernest Infelise as an employee on the payroll records of Flash
Delivery and supplying Infelise with annual W-2 forms, defendant provided
Infelise with what was intended to appear as a legitimate source of income from
employment which could be reported to the Internal Revenue Service.” Plea
Agreement at 2. Therefore, defendant’s request to strike or modify these
statements is denied.
Defendant further objects to lines 85-99 of the PSI which state that in its
version of the offense, the government indicates that:
defendant received the benefit of codefendant Frank Maltese’s corrupt influence
as a public official in the City of Cicero, Illinois. For example, the defendant
received a $ 1,000,000 loan through the City of Cicero as the result of
Codefendant Maltese’s influence.
[*8]
PSI at lines 85-91. Defendant argues that it is misleading to suggest that the
noted loan was a result of “corrupt influences” or that defendant enjoyed a $
1,000,000 benefit from the loan. The government has failed to provide this court
with any evidence to support this contention. Moreover, there are no references
to it in the Government’s Version of The Offense or defendant’s plea agreement,
and it was not mentioned at defendant’s plea hearing. Since no evidence has been
presented to support the government’s contention that defendant improperly
benefitted from Maltese’s corrupt influence on a public official, the noted
reference should be stricken from the PSI and will not be considered at
sentencing.
Defendant next objects to statements in the PSI which suggest that defendant
benefitted financially from his association with crew members or occasionally
earned interest money from juice loans. See PSI at lines 81-84, 478-481. n4
Defendant argues that he did not derive any benefit from his participation in
the instant offense. However, this court agrees with the government that there
is sufficient evidence to prove that defendant benefitted financially from the
crew’s juice [*9] loan operation and that defendant’s involvement in this
aspect of the crew’s operation should be considered relevant conduct for
sentencing purposes. n5
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n4 Defendant also objects to such references in the Government’s Version of
The Offense.
n5 Sentencing Guideline @ 1B1.3 defines “relevant conduct” as “all acts and
omissions . . . during the commission of the offense of conviction, in
preparation of that offense, or to avoid detection or responsibility for that
offense, or that otherwise were in furtherance of that offense.”
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In a consensually recorded conversation on September 1, 1989, defendants
Infelise and Jahoda discussed the money the IRS seized from Flash. In pertinent
part, the following discussion took place:
Jahoda: Shit, they could have gotten some big packages over the years if they
had been there on the right day.
Infelise: They got a pretty good one out of the Trucks. n6
Jahoda: Yeah, I forgot that one. That was 100, wasn’t it?
Infelise: 128.
* * *
Jahoda: So, did you get hurt [*10] on that, Rock?
Infelise: Well, I didn’t get hurt really that much. I had about 12,000 of my
own, my own personal money in there, right? The rest was all company. . . . The
night, the night just before the night it happened. Fat Mike come in with the
card money, right? Parlay cards? It was the end of, they had, they had a fair
season. They won 48,000, so I give him 16,000. So there’s 32. I just. So I put
it in the safe. I told Joe, we got 32,000. But the day before, I made Joe take
150 out of there. I says, Joe, there’s too much money in there. I says, then
tomorrow I got, I says take some of this out of here. Good fucking thing. And
Paulie blew a little money. Paulie blew about, i think we had about 90 and
Paulie had about 12 because . . .
Jahoda: I didn’t know that. [thought most of it was company money.
* * *
Infelise: The reason Paulie had that money in there, some guy wanted to borrow
50,000, so I says, Paulie, I used to let Paulie, you know, earn every once in a
while, when I didn’t have enough money from the bankroll for, you know, this is
the juice bankroll. Paulie makes some good points, I says, bring it down
tomorrow. He brought it down. . . .
Government [*11] Exhibit 420T at 20-21 (emphasis added). This conversation
clearly demonstrates by a preponderance of the evidence that defendant received
money from the crew’s juice loan operation. This is all that is required to
consider this information at sentencing. As the Seventh Circuit stated in
United States v. Fonner, 920 F.2d 1330 (7th Cir. 1990): “No limitation shall be
placed on the information concerning the background, character, and conduct of a
person . . . for the purpose of imposing an appropriate sentence,” and the
standard of proof at sentencing is a preponderance of the evidence and not proof
beyond a reasonable doubt. Id. at 1333. Therefore, this court will consider
defendant’s involvement in this aspect of the crew’s illegal activity relevant
conduct for sentencing purposes.
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n6 The “Trucks” served as a code name for Flash. See Government’s
Objections to the Sentencing Guidelines as Contained in the Pre-Sentence
Investigation Report for Paul Spano and Response to Objections Filed by Spano
(“Government’s Objections”) at 3.
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[*12]
Defendant counters that the conversation described above should not be relied
upon because “Paulie” is never identified by his last name nor is he ever
referred to as “Spano.” Therefore, defendant argues that it is not a permissible
inference that defendant is the “Paulie” referred to in the noted conversation.
According to defendant, there were a number of “Pauls” involved with the crew.
This court is not persuaded that the “Paulie” referred to in the cited
conversation is not defendant. As explained above, Infelise and Jahoda were
discussing the IRS search of Flash, the company owned by defendant. Moreover,
Infelise’s explanation that approximately $ 128,000 was taken during the search
further proves that he and Jahoda were discussing the IRS search of defendant’s
company. In his plea agreement, defendant acknowledged that on December 3,
1986, the IRS searched Flash and seized approximately $ 125,000 from the safe.
Plea Agreement at 3. Indeed, in his plea agreement, defendant also acknowledged
that he “permitted Infelise and others to use the safe at Flash as a depository
for proceeds of the crew’s gambling and ‘juice’ operations. Plea Agreement at
3. Contrary to defendant’s [*13] contention, such evidence clearly indicates
that Infelise and Jahoda were referring to defendant as “Paulie” in the above
conversation.
Defendant also asserts that this court should not rely on Infelise’s
statements to determine whether defendant benefitted financially from the crew’s
juice loan operation. Defendant argues that it is not appropriate to assume
that “merely because Rocky said it, it must be true.” n7 Contrary to defendant’s
contention, there is no reason to believe that Infelise’s statements were not
accurate or that Infelise misrepresented defendant’s involvement in the crew’s
juice loan operation. Infelise described the search at Flash and defendant’s
involvement in what he believed to be a private conversation with Jahoda, the
trusted and long time manager of the crew’s sports bookmaking operation. As the
government suggests: “Under the circumstances, Infelise had no reason to be
untruthful in identifying the amount and source of the funds lost by their
co-conspirators in the gambling business during that particular search.” n8
Absent evidence to the contrary, this court finds that Infelise’s statements are
sufficiently reliable to be considered for sentencing [*14] purposes. And,
the noted conversation is sufficient to prove by a preponderance of the evidence
that defendant benefitted financially from the crew’s juice loan operation.
Therefore, this court will not exclude this evidence at sentencing as defendant
requests because it constitutes relevant conduct. See Section 1B1.3.
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n7 Defendant’s Objections to Government’s Version of the Offense: Paul
Spano at 1.
n8 Government’s Objections at 5.
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Finally, defendant objects to the probation officer’s determination that he
should not receive a two point reduction for acceptance of responsibility. n9
Section 3E1.1 of the Sentencing Guidelines provides for a two level reduction in
offense level “[i] the defendant clearly demonstrates a recognition and
affirmative acceptance of personal responsibility for his criminal conduct.” The
defendant bears the burden of proving that he is entitled to this reduction.
United States v. Guadagno, 970 F.2d 214, 224 (7th Cir. 1992); United States v.
Camargo, 908 F.2d 179, 185 (7th Cir. 1990). [*15]
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n9 See footnote 1; Addendum at 1-2.
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In this case, the government and defendant stipulated that as of the date of
the plea agreement’s execution, defendant had sufficiently demonstrated a
recognition and affirmative acceptance of responsibility for his criminal
conduct which would warrant a two point reduction under Section 3E1.1. See Plea
Agreement at 4-5. However, the government now contends that defendant is not
entitled to this reduction because since the time of his plea agreement,
“defendant has made statements to the Probation Office as reflected at page 3
(lines 103 through 130) of the PSI report, in a typewritten Defendant’s Version
of the Offense and in his Objections to the Presentence Investigation Report and
to the Government’s Version of the Offense, which not only tend to significantly
minimize his culpability in the overall gambling conspiracy but, more
importantly, directly contradict both his Plea Agreement and his sworn testimony
before this Court at the time he entered his plea of guilty.” [*16] n10
Defendant counters that he has accepted responsibility for his actions and
should receive the reduction under Section 3E1.1.
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n10 Government’s Objections at 8.
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This court has already determined that defendant earned money from the crew’s
juice loan operation. In the taped conversation between Jahoda and Infelise
described above, Infelise clearly explained:
The reason Paulie had that money in there, some guy wanted to borrow 50,000, so
I says, Paulie, I used to let Paulie, you know, earn every once in a while, when
I didn’t have enough money from the bankroll for, you know, this is the juice
bankroll. Paulie makes some good points, I says, bring it down tomorrow. He
brought it down . . .
Government Exhibit 420T at 21. As explained above, this conversation adequately
proves by a preponderance of the evidence that defendant benefitted financially
from the crew’s juice loan operation. Therefore, defendant’s refusal to accept
responsibility for his involvement in this portion of the crew’s illegal
activities [*17] suggests that defendant is not entitled to a two point
reduction under Section 3E1.1.
As the government suggests, defendant has made other statements which
indicate that he does not accept full responsibility for his criminal activity.
For example, the probation officer reported that defendant stated that before
his arrest, “he did not realize that his actions were illegal.” PSI at 3, lines
110-11. Similarly in his version of the offense, defendant states:
While Rocky worked at Flash I let him use the telephones, the safe, a desk all
to conduct his gambling business. From time to time Rock would ask me to go to
the safe and put his money in an envelope for someone else to later pick up at
Flash. I did. It was wrong. But now at age 61, to look at prison for this? I
admit my mistake, “accept responsibility” as my lawyer calls it, but to go to
jail for this? I don’t understand.
Defendant’s Version of the Offense at 1-2. This court is not persuaded that
defendant did not realize that permitting the crew to run its gambling operation
out of his business was illegal. Moreover, such statements directly contradict
defendant’s admission in his plea agreement that he “knowingly [*18]
permitted Flash Delivery to be used by members of the Ferriola Street crew,
including Joseph Ferriola, Ernest Rocco Infelise, and others, as a base of
operations and message center for the Ferriola crew’s gambling operations.” Plea
Agreement at 2 (emphasis added). n11 Such statements also contradict
defendant’s sworn statements at his plea hearing. For example, in pertinent
part, the following discussion took place between defendant and this court at
his plea hearing:
The Court: And what did you let your company be used for doing?
Defendant Spano: I knew there was gambling going on.
The Court: And who was it — what did you do there at the company to help the
gambling?
* * *
Defendant Spano: I let them use my safe to deposit money, and they were using
the telephone.
The Court: All right. And you knew they were using the phone?
Defendant Spano: Yes, ma’am.
The Court: And that was for the purpose of running the gambling business?
Defendant Spano: Yes.
The Court: Or helping to run it, rather?
Defendant Spano: Yes.
The Court: And sometimes did meeting take place there at your place, at Flash
Delivery?
Defendant Spano: Yes, ma’am.
(Tr. 57-58, October [*19] 9, 1991, 10:30 a.m.).
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n11 Defendant also admitted in his plea agreement that he was pleading
guilty because “he is in fact guilty of the charges in Count Two of the
indictment.” Plea Agreement at 1.
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Contrary to defendant’s assertion, this court finds that such statements
clearly indicate that defendant knowingly permitted the crew to run its gambling
operation out of Flash. Therefore, defendant’s subsequent claims that he did not
realize such activity was illegal are not credible. And, while his statements
may indicate that defendant regretted his criminal conduct, they clearly do not
demonstrate that defendant acknowledges that he acted with the requisite
criminal intent. Such actions do not adequately demonstrate that defendant
accepts responsibility for his actions within the meaning of the Sentencing
Guidelines. United States v. Williams, 940 F.2d 176, 183 (6th Cir. 1991).
This court also agrees with the government that defendant’s attempts to
minimize the importance of his involvement [*20] in the crew’s gambling
business demonstrate that he does not deserve a reduction for acceptance of
responsibility under Section 3E1.1. For example, in his version of the offense,
defendant states that he “let [Infelise] use the telephones, the safe, a desk
all to conduct his gambling business.” Defendant’s Version of the Offense at 1.
As the government suggests, such characterizations improperly minimize the
significance of defendant’s involvement. For approximately 10 years, defendant
gave the crew a legitimate business front from which to operate their illegal
gambling operation. Defendant also gave Infelise a legal source of income to
report to the IRS which better enabled Infelise to conceal his income from
illegal sources. Contrary to defendant’s characterizations, such help greatly
benefitted the crew and its members. And, defendant’s attempts to minimize the
importance of these facts do not demonstrate the requisite acceptance of
responsibility under Section 3E1.1. Therefore, this court overrules defendant’s
objection to the probation officer’s determination that defendant should not
receive a two point reduction under Section 3E1.1. n12 Since defendant’s offense
level is [*21] 12 and his Criminal History Category is I, the appropriate
sentencing range in this instance is 10-16 months.
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n12 Moreover, the probation officer reported that the defendant “indicated
that he is not remorseful but will accept punishment for his offense behavior.”
PSI at 3, lines 129-130. Defendant also told the probation officer that he
blamed the government for Flash’s bankruptcy. According to defendant, the
government “ruined” him and his business with media coverage linking Flash to
organized crime and gambling. PSI at 3, lines 122-124; see also Defendant’s
Version of The Offense at 1. Such statements clearly do not indicate the
requisite acceptance of responsibility which warrant a two point reduction under
Section 3E1.1.
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The Motion to Withdraw Defendant’s Guilty Plea
Since he has not received a two point reduction for acceptance of
responsibility under Section 3E1.1, defendant also seeks to withdraw his guilty
plea to Count 2 of the indictment. Defendant argues that he pleaded guilty
because [*22] he expected to receive a two point reduction under 3E1.1 which
would bring his adjusted offense level down to 10 and would make him eligible
for a sentence of probation. n13 Defendant contends that he should not be
penalized in this manner for refusing to admit to receiving money from the
crew’s juice loan operation. Defendant argues that he did not benefit
financially from the juice loan operation and should not be required to admit to
this falsehood in order to receive a reduction under Section 3E1.1.
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n13 By denying defendant the two point reduction for acceptance of
responsibility, defendant’s adjusted offense level is 12 and the sentencing
guideline range is 10-16 months. A sentence of probation is not available for
sentence’s in this range.
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Federal Rule of Criminal Procedure 32(d) permits a defendant to withdraw a
guilty plea before sentence is imposed upon a showing of any fair or just
reason. However, a defendant has no absolute right to withdraw a guilty plea.
United States v. Knorr, 942 F.2d 1217, 1219 (7th Cir. 1991). [*23] A
defendant seeking to withdraw his or her plea must satisfy the court that there
are valid grounds for withdrawal of his or her plea. United States v. Thompson,
680 F.2d 1145, 1151 (7th Cir. 1982).
While defendant may be disappointed by the guideline computations and
sentencing determination in this case, this does not provide a sufficient reason
to permit him to withdraw his plea. See Knorr, 942 F.2d at 1220; United States
v. Oliveros-Orosco, 942 F.2d 644, 646 (9th Cir. 1991). In United States v.
Garcia, 909 F.2d 1346 (9th Cir. 1990), the defendant sought to withdraw his
guilty plea because he was not about to receive the sentence he expected. The
Ninth Circuit upheld the trial court’s determination that defendant was not
entitled to withdraw his plea on this basis because “it is well established that
an erroneous prediction by a defense attorney concerning sentencing does not
entitle a defendant to challenge his guilty plea.” Id. at 1348. In reaching this
conclusion, the Ninth Circuit also noted that the record indicated [*24]
that defendant’s plea was knowing and voluntary, and made with the full
understanding that the court was not bound by any sentencing agreement. Id.
Like Garcia, defendant is not entitled to withdraw his plea merely because he
will receive a greater sentence than he expected. This court found that there
was sufficient evidence to prove by a preponderance of the evidence that
defendant benefitted financially from the crew’s juice loan operation. This
court considered defendant’s denials regarding these allegations when
determining that defendant should not receive a two point reduction for
acceptance of responsibility. This was not, however, the only basis for denying
defendant a reduction under Section 3E1.1. The court also found that defendant
did not acknowledge that he possessed the requisite criminal intent when he
committed the charged crimes and attempted to minimize the importance of his
involvement in the enterprise. Such actions provide an independent basis for the
court’s determination that defendant should not receive a reduction for
acceptance of responsibility.
Moreover, like Garcia, defendant pleaded guilty with the full understanding
that this court was [*25] not bound by any sentencing agreement such as the
plea agreement in this case. Defendant’s plea agreement specifically states:
It is understood by the parties that the sentencing judge is neither a party to
nor bound by this agreement and is free to impose the maximum penalties as set
forth in paragraph seven above.
Plea Agreement at 10. The plea agreement also states:
The defendant and his attorney and the government acknowledge that the above
calculations [which included a two point reduction for acceptance of
responsibility] are preliminary in nature and subject to revision by the Court
in light of additional facts not known to the government at the time of the
plea, investigation by the United States Probation Officer and the Court’s
determination of the facts and applicable law. The validity of this plea
agreement is not contingent upon the probation officer’s or the Court’s
concurrence with the above calculations.
Plea Agreement at 5. Moreover, at defendant’s plea hearing, in pertinent part,
the following discussion took place:
The Court: Now, just because I can’t tell you the range, I can’t tell you the
low or the high, so I can’t tell you what I can sentence [*26] you in
between, you cannot take the plea away just because you don’t know the final
numbers. Do you understand that?
Defendant Spano: Yes, ma’am.
* * *
The Court: In other words, if the numbers turn out to be different than what
you’ve agreed to in this preliminary agreement, you can’t take the plea away. Do
you understand that?
Defendant Spano: Yes, ma’am.
(Tr. 52-53, October 9, 1991, 10:30 a.m.). At the hearing, the court also
explained to defendant the maximum possible penalty he faced, and defendant
acknowledge that he had discussed his guilty plea, the plea agreement, and his
sentence with counsel. (Tr. 16-21, 30-31, 36, October 9,1991, 10:30 a.m.); see
also Plea Agreement at 4-5.
Such statements clearly indicate that defendant was fully apprised that the
court was not required to follow the sentencing terms and defendant could face a
prison term in excess of that established in the plea agreement. Defendant
knowingly and willingly accepted the terms of his guilty plea despite the fact
that the guideline calculations were only preliminary in nature. Defendant has
failed to demonstrate that the sentencing range ultimately established by this
court entitles him [*27] to withdraw his guilty plea simply because it is
higher than the sentencing range defendant anticipated.
Finally, defendant’s plea agreement specifically states:
The government and the defendant and his attorneys agree that defendant, as of
the execution of this plea agreement, has demonstrated a recognition and
affirmative acceptance of responsibility for his criminal conduct. In
recognition of defendant’s acceptance of responsibility for his conduct in
connection with these offenses, and assuming that the defendant continues to
accept responsibility for his actions, the defendant is entitled to a two-level
reduction in the resulting offense level (@ 3E1.1).
Plea Agreement at 4-5 (emphasis added). The plea agreement’s requirement that
defendant demonstrate a continued acceptance of responsibility for his actions
comports with the law in this circuit which places the burden of proof of
acceptance of responsibility on the defendant. Guadagno, 970 F.2d at 224;
Camargo, 908 F.2d at 185. For the reasons described above, this court has
determined that defendant has not demonstrated the requisite continued
acceptance [*28] of responsibility for his criminal activities. Defendant
fails to provide this court with an adequate reason why he should be permitted
to withdraw his guilty plea simply because he has failed to comply with the
terms and conditions of his plea agreement. To permit defendant to withdraw his
guilty plea under such circumstances would set a dangerous precedent for future
cases. Therefore, defendant’s motion to withdraw his guilty plea is denied.
Conclusion
For the reasons stated above, defendant’s objections to PSI, except
defendant’s objection to lines 85-99, are overruled. Lines 85-99 of the PSI
should be stricken. Defendant’s request for a two point reduction for acceptance
of responsibility under Section 3E1.1 of the Sentencing Guidelines is denied.
Defendant’s motions to exclude references to juice loan racketeering and
withdraw his guilty plea are also denied. Since defendant’s adjusted offense
level is 12 and his Criminal History Category is I, the appropriate sentencing
range in this instance is 10-16 months.
ENTER:
Ann Claire Williams, Judge
United States District Court
Dated: DEC 23 1992