United States v. Barbaria

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40404
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH A. BARBARIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:01-CR-80-ALL
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October 2, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joseph A. Barbaria (“Barbaria”) appeals his sentence
following his guilty-plea conviction of wire fraud and bankruptcy
fraud in violation of 18 U.S.C. §§ 157 and 1343. He argues that
the district court abused its discretion in imposing an upward
departure. Barbaria asserts that his case did not fall outside
of the “heartland” of cases covered by the Sentencing Guidelines,

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No. 02-40404
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so that an upward departure was not warranted and that the
district court did not rely on permissible departure factors.
The district court’s decision to depart from the Guildelines
is reviewed for abuse of discretion. Koon v. United States, 518
U.S. 81, 96-100 (1996). The factors used by the district court
to justify its departure included Barbaria’s exercise of
management responsibilities over the property, assets, and
activities of businesses used to engage in criminal activities,
the extensiveness of the criminal organization, and the large
number of victims, over 75 individuals and companies, as well as
Barbaria’s persistent abuse of the bankruptcy courts. These
factors are permissible departure factors. See United States v.
Davidson, 984 F.2d 651, 655 (5th Cir. 1993) (affirming departure
where defendant engaged in pervasive criminal scheme); United
States v. Davenport, 286 F.3d 217, 220 (5th Cir. 2002) (affirming
departure based on large number of victims). The district court
also found that Barbaria’s scheme was unusually extensive,
consisting of both a pervasive and unusual abuse of the law and
the judiciary, and thus, the district court properly found that
the case was outside of the “heartland” of the Guidelines. See
United States v. Threadgill, 172 F.3d 357, 377-78 (5th Cir.
1999). Finally, the departure of three months, which increased
Barbaria’s sentence to the statutory sentence of 18 U.S.C. §§ 157
and 1343, was reasonable.
AFFIRMED.

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