United States v. Damon Amedeo

487 F.3d 823
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 24, 2007
Docket16-15834
StatusPublished
Cited by572 cases

This text of 487 F.3d 823 (United States v. Damon Amedeo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Damon Amedeo, 487 F.3d 823 (11th Cir. 2007).

Opinions

[827]*827KRAVITCH, Circuit Judge:

Damon Amedeo appeals Ms 120-month sentence following a guilty plea to one count of cocaine distribution on the grounds that (1) the district court should have recused itself from his resentencing; (2) the sentence violated the mandate rule; (3) the sentence violated 18 U.S.C. § 3742(g); (4) his due process rights were violated by the retroactive application of Booker, and (5) the sentence was unreasonable. For the reasons that follow, we affirm.

I. Background

On February 7, 2002, Amedeo was arrested in connection with the death of Douglas Rozelle III.1 He was later charged in a nine-count superceding indictment with one count each of unlawful drug use while in possession of a firearm, 18 U.S.C. § 922(g)(3); distribution of cocaine to a minor, 21 U.S.C. § 859; cocaine distribution, 21 U.S.C. § 841; possession with intent to distribute marijuana, 21 U.S.C. § 841; and five counts of distribution of marijuana to a minor, 21 U.S.C. § 859. Pursuant to a plea agreement, Amedeo pleaded guilty to the count of distributing cocaine to a minor, 21 U.S.C. § 859(a), and the Government dropped the remaining charges.

After the sentencing hearing on February 13, 2003, the district court sentenced Amedeo to 216 months’ imprisonment and eight years of supervised release, based on an offense level of 37; a criminal history category of I; and enhancements for vulnerable victim, U.S.S.G. § 3A1.1, abuse of trust, § 3B1.3, and obstruction of justice, § 3C1.1. The sentence also included upward departures on the grounds that: (1) Amedeo committed the offense to facilitate a sexual assault on Rozelle, § 5K2.9; (2) Amedeo’s offense resulted in Rozelle’s death, § 5K2.1; (3) Amedeo engaged in extreme conduct by failing to seek medical help for Rozelle and by having unprotected sex with Rozelle despite being infected with hepatitis C, § 5K2.8; and (4) Amedeo distributed drugs to multiple minors, § 5K2.0. The district court denied Ame-deo’s request for a reduction based on acceptance of responsibility pursuant to § 3El.l(a).

Amedeo appealed the sentence to this court, and on May 28, 2004, this court affirmed in part, vacated in part, and remanded for further proceedings. United States v. Amedeo, 370 F.3d 1305, 1325 (11th Cir.2004) (“Amedeo I”). Specifically, this court affirmed all of the enhancements and the denial of the acceptance-of-responsibility reduction. Id. at 1316-21. This court vacated the upward departures under §§ 5K2.0, 5K2.1, 5K2.8,2 and 5K2.9, on the grounds that: Amedeo’s November 2001 sexual assault on Rozelle, his drug use with minors other than Rozelle, his January 2002 sexual encounters with Rozelle, and Rozelle’s death were beyond the scope of “relevant conduct” for purposes of § 1B1.3, as these incidents did not constitute a “common scheme or plan” in connection with Amedeo’s offense of conviction. Amedeo I, 370 F.3d at 1313-24.

On August 2, 2004, the district court [828]*828issued a Bums3 notice indicating its intention to consider on remand a departure under U.S.S.G. § 4A1.3 (underrepresentation of criminal history). Anticipating a forthcoming decision by the Supreme Court addressing the applicability of Blakely4 to the Sentencing Guidelines, Am-edeo filed a motion for a continuance, which the district court granted.

On January 12, 2005, the Supreme Court issued its opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held, inter alia, that the Sentencing Guidelines could not be imposed in a mandatory manner, but that sentencing courts were required to consider the Guidelines along with other statutorily relevant factors. Id. at 258-67, 125 S.Ct. at 764-69. The Booker Court also held that this remedial holding was to be applied to cases pending on direct review. Id. at 268, 125 S.Ct. at 769. On February 1, 2005, the district court issued an amended notice of its intent to consider a departure under § 4A1.3 based on Ame-deo’s sexual contact with Rozelle. Prior to the resentencing hearing, Amedeo filed a motion requesting that the district judge recuse himself, which the court denied.

At the resentencing hearing on March 11, 2005, the district court calculated the Guidelines range at 37-46 months, decided not to impose an upward departure, and found that the Guidelines range did not reflect the seriousness of the crime in light of 18 U.S.C. § 3553(a). The court held that Booker constituted an exception to the mandate rule, as it was an intervening “radical change in the law governing sentencing guideline applications” that required the court to apply the Guidelines in an advisory manner by imposing a reasonable sentence in light of § 3553(a). The court then imposed a sentence of 120 months’ imprisonment.

II. Discussion

A. Recusal from Resentencing

On appeal, Amedeo argues that the district court erred in failing to recuse itself for his resentencing. We review a judge’s decision not to recuse for an abuse of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir.2004).

Section 455 of Title 28 of the U.S. Code creates two conditions for recu-sal. United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.2003). First, § 455(a) provides that a judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). Under § 455(a), recusal is appropriate only if “an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which re-cusal was sought would entertain a significant doubt about the judge’s impartiality.” Patti 337 F.3d at 1321 (citation omitted). And “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994) (citation omitted).

Second, § 455(b) provides that a judge also shall disqualify himself where,

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