United States v. Craig Michael Coscarelli, Also Known as John Coscarelli

105 F.3d 984, 1997 U.S. App. LEXIS 1759, 1997 WL 40600
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 3, 1997
Docket96-20264
StatusPublished
Cited by23 cases

This text of 105 F.3d 984 (United States v. Craig Michael Coscarelli, Also Known as John Coscarelli) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Craig Michael Coscarelli, Also Known as John Coscarelli, 105 F.3d 984, 1997 U.S. App. LEXIS 1759, 1997 WL 40600 (5th Cir. 1997).

Opinions

DeMOSS, Circuit Judge:

Craig Michael Cosearelli pleaded guilty to an indictment charging him in Count I with conspiracy to commit wire fraud, mail fraud, money laundering, and the use of fictitious names in a mail fraud scheme. The government appeals from the sentence imposed upon Cosearelli, contending that the district court improperly applied United States Sentencing Guidelines (U.S.S.G.) § 2F1.1, the provision for offenses involving fraud or deceit, in calculating the term of Cosearelli’s imprisonment. The government argues that the district court should have used U.S.S.G. § 2S1.1, the money laundering and monetary [986]*986transaction reporting provision, to calculate Coscarelli’s offense level in this case. For the forthcoming reasons, we VACATE the sentence imposed by the district court and REMAND for repleading and, if necessary, resentencing in accordance with this opinion.

BACKGROUND ’

Beginning in 1993, Coscarelli and others were involved in a telemarketing-fraud scheme. Using fictitious business monikers, the co-conspirators purchased lists of names, telephone numbers, and addresses of persons who had previously participated in telemarketing “sweepstakes.” ' The co-conspirators used telephone banks.operating out of sham telemarketing businesses or “reload rooms” from various addresses in and around Houston. These reload rooms were used to make calls to potential victims. The telemarketers contacted potential victims and told them that they had won a contest and that they were to receive various awards. A telemarketer would explain that the award would be sent after the “winner” mailed a check, payable to one of the fictitious companies, to a “mail drop” address in California, Florida or Texas,, allegedly to cover taxes and other shipping costs necessary to send the prize.

Coscarelli was responsible for collecting the cash from the money orders and cheeks cashed in California, Florida, and Texas and routing the money back to himself. Cosear-elli then distributed the proceeds to the other co-conspirators. The record reflects that victims sent $915,143.56 to the fictitious companies of this telemarketing scheme. The indictment alleged that Coscarelli encouraged the telemarketers to use fictitious names in order to conceal their identities from the victims and law enforcement agencies. Cos-carelli further concealed and frequently changed the locations of the reload rooms. He also changed the telephone numbers of the fictitious companies.

Furthermore, Coscarelli arid others were responsible for distributing the proceeds of the fraud to themselves, to the individual telemarketers, and to pay for the operating expenses of the reload rooms. Coscarelli was the person who executed, applications for mail drops, filed records with the Secretary of the State of Texas for at least one of the fictitious companies, and executed lease agreements for the reload rooms.

This scheme ended in late 1994 with the arrest and indictment of Coscarelli and other co-conspirators. In an 11-count indictment, Coscarelli was charged in Count I with conspiracy to commit wire fraud, mail fraud, using fictitious names in a scheme to defraud, and money laundering in violation of 18 U.S.C. §§ 371, 1341, 1342, 1343, and 1956(a)(l)(A)(i). Each of counts two through 11 contained a substantive offense for all but one of those offenses stated in the conspiracy count. Money laundering, included as an offense in the conspiracy count, was not the subject of a separate substantive count in the indictment.

In June 1995, Coscarelli pleaded guilty to all 11 counts. There was no written plea agreement prepared. At the Rule 11 plea hearing, the district court explained that “on each of the 11 counts to which you’ve indicated you wish to plead guilty the maximum penalty is imprisonment for up to five years and a fine of not more than $250,000....”

After Coscarelli pleaded guilty, the probation department prepared its presentenee investigation report (“PSI”). The probation department calculated Coscarelli’s base offense level in the PSI using the money laundering guideline, U.S.S.G. § 2S1.1, for this, multiple-object conspiracy. The PSI used U.S.S.G. § 301.2(d),1 comment, (ns. 4 & 8), § 2X1.1, and § 2S1.1 in arriving at a base [987]*987offense level of 27. Section 2S1.1 scored Co'scarelli’s offense level at 23, adjusted upward by four levels under 2Sl.l(b)(2)(E) because the amount of money involved exceeded $600,000 but was less than $1 million. The probation department recommended that Coscarelli also receive a four-level upward adjustment for his aggravated role in the offense under U.S.S.G. § 3Bl.l(a) to reach a total offense level of 31. He did not receive a downward adjustment for acceptance of responsibility. With a total offense level of 31 and a criminal history category II, the Guidelines called for a punishment range of 121-151 months.

Coscarelli’s objection to the PSI stated that:

Mr. Coscarelli was not charged with money laundering as a substantive count and Mr. Coscarelli did not knowingly or intentionally commit money laundering. Any money laundering that occurred was incidental to the main misconduct of wire and mail fraud via telemarketing.

As a result, Coscarelli argued that U.S.S.G. § 2X1.1 requires that the district court use U.S.S.G. § 2F1.1, instead of U.S.S.G. § 2S1.1, to calculate his base offense level.

At the sentencing hearing, the district court sustained Cosearelli’s objection, concluding that the fraud guideline, U.S.S.G. § 2F1.1, rather than the money laundering guideline, U.S.S.G. § 2S1.1, should govern the calculation of Coscarelli’s base offense level. Over the government’s objection, the district court ruled that Coscarelli had not been charged with a substantive count of money laundering and he “did not knowingly commit money laundering.” The district court found that the fraud guidelines more accurately described the conduct in this case than did the money laundering guidelines.

The district court, applying the fraud guidelines, found Coscarelli’s base offense level to be 23. With a criminal history category of II, Coscarelli’s Sentencing Guideline calculation showed a punishment range of 51-63 months. The district court then imposed a sentence of 63 months. The government filed a timely notice of appeal.

DISCUSSION

Challenges to the district court’s application of the sentencing guidelines are reviewed de novo. United States v. Brown, 54 F.3d 234, 240 (5th Cir.1995). The district court’s factfindings in support of its application of the guidelines are reviewed for clear error. Id.

1. The Application ofU.S.S.G. § 2S1.1 to a Multiple-Object Conspiracy

The government contends that the district court erred by sustaining Coscarelli’s objection to the use of U.S.S.G. § 2S1.1, the money laundering guideline, in calculating his base offense level.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jose Escalante-Reyes
689 F.3d 415 (Fifth Circuit, 2012)
United States v. Wilson
Fifth Circuit, 2001
United States v. George L.J. Wilson
249 F.3d 366 (Fifth Circuit, 2001)
United States v. Farese
Eleventh Circuit, 2001
United States v. Peterson
244 F.3d 385 (Fifth Circuit, 2001)
United States v. Coscarelli
Fifth Circuit, 2000
United States v. Brown
186 F.3d 661 (Fifth Circuit, 1999)
United States v. Graves
Fifth Circuit, 1999
United States v. Hamilton
Fifth Circuit, 1999
United States v. Larry L. Emerson
128 F.3d 557 (Seventh Circuit, 1997)
United States v. Blackwell
Tenth Circuit, 1997
United States v. Donald Keith Blackwell
127 F.3d 947 (Tenth Circuit, 1997)
United States v. Tolliver
116 F.3d 120 (Fifth Circuit, 1997)
United States v. Metz
116 F.3d 120 (Fifth Circuit, 1997)
United States v. Moore
Fifth Circuit, 1997

Cite This Page — Counsel Stack

Bluebook (online)
105 F.3d 984, 1997 U.S. App. LEXIS 1759, 1997 WL 40600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-craig-michael-coscarelli-also-known-as-john-coscarelli-ca5-1997.