United States v. Riggi (Abramo)

09-4391-cr
United States v. Riggi (Abramo)
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2010 5
6
7
(Argued: January 13, 2011 Decided: August 10, 2011) 8
9
Docket No. 09-4391-cr 10
11
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13
UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
- v.- 18
19
GIOVANNI RIGGI, also known as John Riggi, also known as 20
Uncle John, GIROLAMO PALERMO, also known as Jimmy Palermo, 21
CHARLES MAJURI, STEFANO VITABILE, also known as Steve 22
Vitabile, FRANCESCO POLIZZI, also known as johndoe6, also 23
known as Frank Polizzi, also known as Francesco Polizzi, 24
ANTHONY MANNARINO, also known as Anthony Marshmallow, also 25
known as Anthony Marshmallo, LOUIS CONSALVO, also known as 26
johndoe8, also known as Louie Eggs, also known as Frank 27
Scarabino, GREGORY RAGO, FRANK D’AMATO, BERNARD NICASTRO, 28
FRANK SCARABINO, also known as Franky the Beast, GIUSEPPE 29
SCHIFILLITI, also known as Pino Schifilliti, CHARLES STANGO, 30
also known as Charlie the Hat, also known as The Mad Hetter, 31
also known as Goombs, also known as Goombsie, JOSEPH COLLINA 32
SR., SIMONE PALERMO, also known as Daddy, SALVATORE TIMPANI, 33
also known as Sal the Barber, also known as Little Sal, 34
JOSEPH BRIDESON, also known as Big Joey, AMERICO MASSA, also 35
known as Mike Massa, MARTIN LEWIS, RUBEN MALAVE, MICHAEL 36
SILVESTRI, 37
38
Defendants, 39
40
PHILIP ABRAMO, 41
42
Defendant-Appellant. 43
44
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1
Before: JACOBS, Chief Judge, WESLEY and CHIN, 2
Circuit Judges. 3
4
Defendant-Appellant Philip Abramo appeals from a 5
judgment of conviction and sentence of the United States 6
District Court for the Southern District of New York 7
(Rakoff, J.), arguing that his rights under the Ex 8
Post Facto Clause were violated by the application of the 9
2008 Sentencing Manual to a murder conspiracy that concluded 10
in 1989. He contends that this alleged violation and his 11
ignorance of his ex post facto rights render the appeal- 12
waiver provision in his plea agreement unenforceable. 13
We enforce the appeal-waiver provision and dismiss the 14
appeal. 15
INGA L. PARSONS, Marblehead, MA, 16
for Defendant-Appellant. 17
18
STEVE C. LEE, Assistant United 19
States Attorney (Andrew L. Fish, 20
Assistant United States 21
Attorney, on the brief), for 22
Preet Bharara, United States 23
Attorney for the Southern 24
District of New York, New York, 25
NY, for Appellee. 26
DENNIS JACOBS, Chief Judge: 27
Defendant-Appellant Philip Abramo appeals from a 28
judgment of conviction and sentence of the United States 29
District Court for the Southern District of New York 30
2

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(Rakoff, J.), arguing that his rights under the Ex 1
Post Facto Clause were violated by the application of the 2
2008 Sentencing Manual to a murder conspiracy that concluded 3
in 1989. He contends that this alleged violation and his 4
ignorance of his ex post facto rights render the appeal- 5
waiver provision in his plea agreement unenforceable. 6
Abramo returns to this Court several years after we 7
vacated his conviction and life sentence, holding that the 8
admission of eight plea allocutions of non-testifying co- 9
conspirators was plain error under the intervening Crawford 10
v. Washington decision. 541 U.S. 36 (2004); see United 11
States v. Riggi, 541 F.3d 94 (2d Cir. 2008). On remand, 12
Abramo pled guilty pursuant to a plea agreement to charges 13
that carried a greatly reduced maximum aggregate sentence of 14
eighteen years: conspiracy to commit murder, conspiracy to 15
commit loansharking, and receiving the proceeds of 16
extortion, in violation of 18 U.S.C. §§ 1959(a)(5), 371, and 17
880, respectively. 18
The plea agreement contained a broad appeal-waiver 19
provision by which Abramo agreed to forgo appealing any 20
sentence of eighteen years or less. 1 The parties also 21
1 The full waiver reads:
It is agreed (i) that the defendant will not file
a direct appeal, nor litigate under Title 28,
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stipulated to several Guidelines particulars: first, that 1
“[t]he Guidelines provisions in effect as of November 1, 2
2008, apply to this case”; second, that the appeal waiver 3
was binding “even if the Court employ[ed] a Guidelines 4
analysis different from that stipulated to [t]herein”; 5
third, that the Guidelines sentence was the statutory 6
maximum of 216 months. Joint Appendix at 59, 61, 63. 7
The plea was accepted by the district court at a July 8
9, 2009 plea colloquy. Abramo confirmed he was knowingly 9
relinquishing the right to appeal. 10
However, Abramo’s sentencing memorandum raised an 11
interesting ex post facto issue. The charged murder 12
conspiracy ended in 1989 upon the death of the targeted 13
victim. The Guidelines for murder conspiracy were raised 14
significantly in 1990: Conspiracies that “result[ed] in the 15
death of a victim” were linked to the first-degree murder 16
United States Code, Section 2255 and/or Section
2241, any sentence of 18 years (i.e., the
Stipulated Guidelines Sentence) or less, and (ii)
that the Government will not appeal any sentence
of 18 years. This provision is binding on the
parties even if the Court employs a Guidelines
analysis different from that stipulated to herein.
Furthermore, it is agreed that any appeal as to
the defendant’s sentence that is not foreclosed by
this provision will be limited to that portion of
the sentencing calculation that is inconsistent
with (or not addressed by) the above stipulation.
Joint Appendix at 63.
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Guidelines. See U.S.S.G. §§ 2A1.1, 2A1.5(c)(1); id. App. C, 1
amend. 311 (1990). Abramo argued that applying the 2008 2
Guidelines--as stipulated--would violate his rights under 3
the Ex Post Facto Clause because this significant 4
enhancement was added after the charged murder conspiracy 5
had ended.2 (Applying the 1989 Guidelines would have 6
resulted in a range of 78 to 97 months.) 7
But Abramo did not move to withdraw his plea; he raised 8
the issue only for the district “[c]ourt’s attention as part 9
2 The “one-book” rule raises a hurdle for Abramo. A
“sentencing court must generally apply the version of the
Guidelines that is in effect at the time of sentencing,”
United States v. Rodriguez, 989 F.2d 583, 587 (2d Cir.
1993); but if the court determines that the application
would violate the Ex Post Facto Clause, it “shall use the
Guidelines Manual in effect on the date that the offense of
conviction was committed,” U.S.S.G. § 1B1.11(b)(1). Where
multiple offenses were committed (and the present Manual
would trigger an ex post facto violation), the one-book rule
dictates that the Guidelines Manual in effect for the most
recent offense is applied to all offenses. See id.
§ 1B1.11(b)(2)-(3).
The superseding information alleges that the
loansharking conspiracy ran from 1990 through October 2000.
Under the one-book rule, the earliest Manual that could
apply is the 1999 version, which contains the stricter
murder-conspiracy provisions. Abramo counters that he
technically allocuted only to conduct through October 1990,
which he argues supersedes the date range from the
information (thus making the 1989 Guidelines applicable and
preserving the ex post facto issue).
Because we enforce the appeal waiver, we need not reach
this issue.
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of its review of [the 18 U.S.C.] § 3553(a) factors,” as a 1
“relevant fact . . . in assessing a fair and just sentence.” 2
Joint Appendix at 107-09. Nor did the issue factor into his 3
requested sentence, which sought a reduction in the 216- 4
month statutory maximum for the time he served on related 5
charges in Florida. 3
6
When the issue was raised at sentencing, the district 7
court viewed the discrepancy between the 1989 and 2008 8
murder-conspiracy Guidelines as evidence “that the 9
guidelines are not operating in the manner in which they 10
were intended to operate.” Joint Appendix at 157. The 11
court indicated that the discrepancy therefore would not 12
“make the slightest difference in [Abramo’s] sentence,” id.; 13
it instead referenced the nature of the offense itself: 14
[L]ooking at the conspiracy to murder, why is that 15
not an offense that calls for a[n] 18 year 16
penalty? . . . [W]hat crime more calls out for 17
deterrence, for punishment, for the most severe 18
penalties that the court allows than getting 19
together to murder a human being? 20
Joint Appendix at 172. But because the court had to select 21
a Guidelines range, Gall v. United States, 552 U.S. 38, 49 22
3 Abramo’s primary concern was to seek a downward
departure for the 70 months (61 months after good time) he
served in Florida on related stock-fraud charges. Due to a
long delay in the sentencing for the conviction that we
later vacated, Abramo lost the opportunity for the Florida
offense to run concurrently.
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(2007), it chose to apply the 2008 Guidelines. Abramo was 1
sentenced to 186 months’ imprisonment: the 216-month 2
statutory maximum with a partial offset for the 70-month 3
sentence he served in Florida. 4
This appeal followed. Abramo argues that the 5
application of the harsher murder-conspiracy provisions in 6
the 2008 Manual violated the Ex Post Facto Clause. He 7
offers two theories as to why the appeal-waiver provision is 8
unenforceable: first, his ex post facto rights were 9
unwaivable; second, any waiver was unknowing, due to his 10
ignorance of his ex post facto rights. 11
12
DISCUSSION 13
“Waivers of the right to appeal a sentence are 14
presumptively enforceable.” United States v. Arevalo 15
(Vigil), 628 F.3d 93, 98 (2d Cir. 2010). We have 16
“repeatedly upheld the validity of [appeal] waivers” if they 17
are “knowingly, voluntarily, and competently provided by the 18
defendant.” United States v. Gomez-Perez, 215 F.3d 315, 318 19
(2d Cir. 2000). The “exceptions to the presumption of the 20
enforceability of a waiver . . . occupy a very circumscribed 21
area of our jurisprudence.” Id. at 319. We construe plea 22
agreements “according to contract law principles,” United 23
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States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995), but 1
“because plea agreements are unique contracts, we temper the 2
application of ordinary contract principles with special due 3
process concerns for fairness and the adequacy of procedural 4
safeguards.” United States v. Woltmann, 610 F.3d 37, 39-40 5
(2d Cir. 2010) (internal quotation marks and ellipsis 6
omitted). 7
8
I 9
A violation of a fundamental right warrants voiding an 10
appeal waiver. For example, we have voided appeal waivers 11
where the sentence imposed was based on unconstitutional 12
factors--such as race, see Gomez-Perez, 215 F.3d at 319, 13
naturalized status, see, e.g., United States v. Jacobson, 15 14
F.3d 19, 23 (2d Cir. 1994), or the ability to pay 15
restitution, see, e.g., United States v. Johnson, 347 F.3d 16
412, 415, 419 (2d Cir. 2003). Similarly, we have voided 17
waivers where a sentencing court “failed to enunciate any 18
rationale for the defendant’s sentence,” and thus 19
“abdicat[ed] [its] judicial responsibility.” Woltmann, 610 20
F.3d at 40 (internal quotation marks omitted) (voiding 21
waiver because sentencing court relied on plea agreement “to 22
the exclusion of” the 18 U.S.C. § 3553(a) factors and a 23
8

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U.S.S.G. § 5K1.1 letter urging a below-Guidelines sentence). 1
On the other hand, other meaningful errors are 2
insufficient to void an appeal waiver. We have enforced 3
waivers where a sentence was arguably imposed contrary to a 4
statutory requirement. See Yemitan, 70 F.3d at 748 5
(enforcing appeal waiver despite potential noncompliance 6
with statement-of-reason requirement in 18 U.S.C. 7
§ 3553(c)(1), because the noncompliance--if any--did not 8
present the “extraordinary circumstances” of the 9
impermissible bias or abdication cases). We also enforced 10
an appeal waiver notwithstanding the defendant’s claim that 11
the sentencing court failed to make certain downward 12
departures prior to sentencing. United States v. Rivera, 13
971 F.2d 876, 896 (2d Cir. 1992); see also United States v. 14
Buissereth, 638 F.3d 114, 115-16 (2d Cir. 2011) (enforcing 15
appeal waiver despite district court’s failure to: rule on 16
[i] objections to the pre-sentence report (PSR) and [ii] 17
requests for downward departures; adopt findings of PSR; 18
discuss the § 3553(a) factors; and calculate applicable 19
sentencing range). 20
The decisive considerations dividing these cases appear 21
to be the nature of the right at issue and whether the 22
sentence “was reached in a manner that the plea agreement 23
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did not anticipate.” United States v. Liriano-Blanco, 510 1
F.3d 168, 174 (2d Cir. 2007). As to the nature of the 2
right, a defendant pleading guilty “can waive elemental 3
constitutional and statutory rights.” United States v. 4
Braimah, 3 F.3d 609, 611 (2d Cir. 1993); see also McCarthy 5
v. United States, 394 U.S. 459, 466 (1969) (“A defendant who 6
enters [a guilty] plea simultaneously waives several 7
constitutional rights . . . .”); United States v. Waters, 23 8
F.3d 29, 36 (2d Cir. 1994) (holding that ex post facto 9
challenge to statute of conviction was waived by pleading 10
guilty without preserving the issue). However, “a defendant 11
may be deemed incapable of waiving a right that has an 12
overriding impact on public interests,” United States v. 13
Ready, 82 F.3d 551, 555 (2d Cir. 1996), as such a waiver may 14
“irreparably discredit[] the federal courts,” id. at 556 15
(quoting United States v. Mezzanatto, 513 U.S. 196, 204 16
(1995)). As to unanticipated matters at sentencing, “a 17
defendant who waives his right to appeal does not subject 18
himself to being sentenced entirely at the whim of the 19
district court.” United States v. Marin, 961 F.2d 493, 496 20
(2d Cir. 1992). 21
Neither consideration warrants voiding Abramo’s appeal 22
waiver. There is no suggestion that the sentencing judge 23
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was biased or that he abdicated his judicial responsibility; 1
to the contrary, the constitutional error during sentencing 2
arose following a careful consideration of a baffling legal 3
issue--if indeed there was any error. 4 Any issue as to 4
Abramo’s knowledge aside, the sentencing process was exactly 5
as anticipated: The district court applied the 2008 6
Guidelines, as contemplated by the following three 7
stipulations from the plea agreement: (1) that the 2008 8
Guidelines be used; (2) that the applicable Guidelines 9
sentence was eighteen years; and (3) that the agreement was 10
binding even if the court used a different Guidelines range. 11
Joint Appendix at 59-62. No public interest was impaired by 12
Abramo’s waiver, and recognizing the waiver does not impugn 13
the integrity of the judiciary or the sentencing process. 14
4 Because the Guidelines are only advisory, applying a
provision that was amended after the charged offense
violates the Ex Post Facto Clause only where there was a
“‘substantial risk’” that the imposed sentence “‘was more
severe’” because of the amendment. United States v. Ortiz,
621 F.3d 82, 87 (2d Cir. 2010) (quoting United States v.
Turner, 548 F.3d 1094, 1100 (D.C. Cir. 2008)), cert. denied,
131 S. Ct. 1813 (2011). Here, Judge Rakoff was aware of the
discrepancy between the two Manuals, but concluded that it
had no effect on the sentence he was imposing because the
Guidelines were not “operating in a way that g[ave] the
Court any meaningful guidance.” Joint Appendix at 158.
This explicit consideration of the phenomenon that arguably
implicates the Ex Post Facto Clause, and the decision to
discount or disregard the provision said to create the
violation, may eliminate any “significant risk” of a more
severe sentence.
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Rather, by agreeing not to appeal, Abramo avoided another 1
life sentence and capped his sentencing exposure. (The 2
government presumably would not have offered the deal if the 3
lower Guidelines range were applicable.) If in such 4
circumstances a waiver were found unenforceable, then “the 5
covenant not to appeal becomes meaningless and would cease 6
to have value as a bargaining chip in the hands of 7
defendants.” Yemitan, 70 F.3d at 746, 748. 8
United States v. Rosa, 123 F.3d 94 (2d Cir. 1997), is 9
not to the contrary. In Rosa, we noted in dicta that “[w]e 10
will certainly often be willing to set aside the waiver and 11
accept appeal when constitutional concerns are implicated, 12
whether those concerns be related to a particular 13
constitutional provision such as the ex post facto clause 14
. . . .” Id. at 101 (emphasis added). This dicta should be 15
read in view of the “disturbing characteristic[s],” id. at 16
100, of the plea agreement in Rosa: The parties did not 17
stipulate to a sentence below which the defendant would not 18
appeal (in this case, eighteen years); rather, the defendant 19
agreed not to appeal a within-Guidelines sentence regardless 20
of the court’s Guidelines calculation. The agreement thus 21
“may [have] subject[ed] a defendant to a sentence vastly 22
greater than he, or possibly even the Government, could have 23
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anticipated.” Id. In any event, the dicta dates from the 1
era of mandatory Guidelines, a variable with impact on ex 2
post facto issues. (Moreover, the Rosa court enforced the 3
waiver notwithstanding its “disturbing characteristic[s],” 4
id.) 5
II 6
Abramo argues that he did not knowingly or 7
intelligently agree to the appeal waiver because he was 8
ignorant of his existing ex post facto rights. He invokes 9
contract principles, classifying the Guidelines stipulations 10
as a mutual mistake of fact that voids the contract. Abramo 11
Br. at 26. 12
A mutual mistake concerning the proper Guidelines range 13
is an insufficient basis to void a plea agreement. In 14
United States v. Rosen, 409 F.3d 535 (2d Cir. 2005), the 15
parties overlooked an ex post facto issue (among others) 16
when calculating the stipulated Guidelines range in the plea 17
agreement, id. at 541-42; the district court applied the 18
otherwise proper calculation, which yielded a stricter 19
Guidelines range, id. at 544.5 We held that the defendant’s 20
5 Resolving a potential ex post facto issue should
yield a more lenient result, but other errors in the
calculation led to the stricter range. (The enhancement
that triggered the potential ex post facto issue had been
erroneously omitted from the parties’ calculation, so
applying the earlier Guidelines Manual did lower the
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request to withdraw his plea was properly denied. Because 1
the plea agreement contained “express provisions with 2
respect to the possibility of a mistaken prediction as to 3
sentencing calculations,” the agreement was “not a proper 4
candidate for rescission on the ground of mutual mistake.” 5
Id. at 548-49. (Rosen did not involve an appeal-waiver 6
provision, but we see no reason why Rosen’s approach would 7
not be valid in this context as well. See United States v. 8
Castillo, 303 F. App’x 989 (2d Cir. 2008) (summary order).) 9
But Rosen (and Castillo) involved Guidelines 10
calculation errors of the garden variety, not alleged 11
violations of constitutional rights. 6 Abramo distinguishes 12
Rosen by claiming that the Guidelines error here arose from 13
his ignorance of existing 7 constitutional rights. Abramo 14
Br. at 27. (The government does not argue that Rosen is 15
ultimate Guidelines range).
6 As noted, the Rosen court recognized the potential ex
post facto issue that the parties overlooked, and applied
the correct Manual; Rosen thus did not argue that his ex
post facto (or other constitutional) rights were violated.
7 Our cases foreclose the possibility that a plea
agreement can be nullified by a change in law after the
agreement is executed: A defendant’s “inability to foresee
that subsequently decided cases would create new appeal
issues does not supply a basis for failing to enforce an
appeal waiver.” United States v. Morgan, 406 F.3d 135, 137
(2d Cir. 2005) (“Morgan II”). “[T]he possibility of a
favorable change in the law after a plea is simply one of
the risks that accompanies pleas and plea agreements.” Id.
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controlling; in fact, it does not even cite Rosen.) 1
Abramo’s argument derives from our dicta: We have hinted 2
that “ignorance of existing rights may void a plea agreement 3
and a waiver of appellate rights,” United States v. Roque, 4
421 F.3d 118, 122 (2d Cir. 2005). For example, in United 5
States v. Morgan (“Morgan I”), we did not foreclose the 6
possibility that an otherwise valid waiver could be 7
unenforceable “if a defendant can establish that he was 8
unaware of his Apprendi rights at the time he entered into 9
his plea agreement.” 386 F.3d 376, 381 n.3 (2d Cir. 2004); 10
see also Morgan II, 406 F.3d at 137 n.2 (reiterating that 11
existing-rights argument is not reached); United States v. 12
Haynes, 412 F.3d 37, 39 (2d Cir. 2005) (per curiam) (citing 13
Morgan II). 14
It is unclear, however, why a hypothetical claim based 15
on “ignorance of existing rights” is not subsumed by a claim 16
based on ineffective assistance of counsel, which can 17
survive an appeal waiver “where the claim concerns ‘the 18
advice [the defendant] received from counsel.’” Parisi v. 19
United States, 529 F.3d 134, 138 (2d Cir. 2008) (quoting 20
United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 21
1997)). A lawyer’s obligations during plea negotiations 22
include informing the client of constitutional rights that 23
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affect the plea. Thus, a defendant claiming ignorance of 1
existing constitutional rights during plea negotiations is 2
in effect arguing that the advice given by his counsel was 3
inadequate or incorrect. Such a deficient performance is 4
one element of an ineffective-assistance claim. Id. at 140 5
(referencing Strickland v. Washington, 466 U.S. 668, 688, 6
693 (1984)). Were a separate “ignorance of existing rights” 7
claim readily available, a defendant could litigate the same 8
issue twice. 9
That concern is particularly acute here. Abramo claims 10
“ignorance of existing rights” in this appeal, but he has 11
carefully reserved an ineffective-assistance claim for a 12
habeas petition. Abramo Br. at 28. (And he goes further, 13
arguing that the “specter” of the ineffective-assistance 14
claim “should give additional weight to finding the waiver 15
clause unenforceable” in this case. Id.) We cannot say 16
that a claim alleging ignorance of existing rights will 17
always be subsumed by a claim of ineffective assistance, but 18
on these facts Abramo’s alleged ignorance of his ex post 19
facto rights is relevant only in an ineffective-assistance 20
claim (which is not raised here, and as to which we express 21
no view). 22
Moreover, even assuming that Abramo was not aware of 23
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the ex post facto issue when he pled guilty, he was well 1
aware of it by the time of sentencing. Yet he made no 2
motion to withdraw his plea and took no step to preserve the 3
issue for appeal. Instead he elected to ask that this be 4
taken into account merely as a sentencing factor under 5
§ 3553(a). And he made this election knowing that he had 6
waived his right to appeal any sentence of eighteen years or 7
less. 8
Under these circumstances, we hold that the plea waiver 9
is enforceable. 10
11
CONCLUSION 12
For the foregoing reasons, Abramo’s appeal is 13
dismissed. 14
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