United States v. Dennis L. Astorri

923 F.2d 1052, 1991 U.S. App. LEXIS 864, 1991 WL 4045

• Court: Court of Appeals for the Third Circuit
• Decided: January 22, 1991
• Docket: 90-3277
• Status: Published

Opinions

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant Dennis Astorri pleaded guilty to one count of wire fraud and one count of income tax evasion. The district court imposed two concurrent 54-month terms of imprisonment and ordered Astorri to make restitution in the amount of $361,317.77. On appeal, Astorri claims that the district court misapplied the United States Sentencing Guidelines. Although we agree with much of the district court’s disposition, we will remand for resentencing as to one aspect of the sentence discussed below in part V.

I.

Dennis Astorri was a stockbroker who lived extravagantly. He rented an expensive apartment, leased a Porsche automobile, totally supported his girlfriend, and used cocaine frequently. His living habits were not supported by honest enterprise but by a fraudulent stockbrokerage scheme. Astorri promised tremendous returns to gullible investors and pocketed their investment money. He defrauded twelve individuals, including his girlfriend’s parents, John and Elvira Kronyak. The Kronyaks lost their life savings of $119,-311. They invested by taking a second mortgage on their home. To pay off the second mortgage, Mr. Kronyak, an electrician, will be forced to forego his planned early retirement and work as long as possible. Astorri’s other victims fared no better.

Mark McCurnin lost $48,000 he received in settlement for an injury he sustained. Melvin and Linda Brown lost $1,800, saved for their children’s education. George and Grace Taylor, retirees in poor health, lost $160,000. They raised their investment by selling inherited stock, cashing a $35,000 certificate of deposit, and withdrawing $10,000 from an individual retirement account. The Taylors mortgaged their house just to pay income taxes on the stock they sold.

Lynn and David Ross lost $7,200 which represented a large part of their life savings. Joseph and Audrey Needles, both nearly sixty, lost $15,000, raised by selling stock. Vincent Moscarelli, a self-employed horse trainer who earns only $18,000 a year, lost his life savings of $9,500.

Astorri executed his scheme by getting customers to invest in the stock or bond market through his stockbrokerage, First Securities of America. Initially, Astorri would legitimately invest his victims’ funds. After a short period, he would inform them of a great investment opportunity with an attractive rate of return. Astor-ri would then deposit his investors’ money into his personal bank accounts. Some of this money was invested, but most Astorri spent. To avoid making payments to his investors, and to cover up his scheme, he persuaded the victims to reinvest their “profits.”

Astorri was charged with a number of crimes, but in return for his pleas of guilty to one count of wire fraud, 18 U.S.C. § 1343, and one count of income tax evasion, 26 U.S.C. § 7201, the government dropped charges of mail fraud, 18 U.S.C. § 1341; failure to file income tax returns, 26 U.S.C. § 7203; perjury, 18 U.S.C. § 1623; and fraud, 18 U.S.C. § 2314. When sentencing Astorri, the district court made the following upward adjustments to Astorri’s base offense level of six: (1) seven levels for the amounts of money involved in the fraud; (2) two levels because more than one person was defrauded; (3) two levels for vulnerable victims; (4) two levels for using a stockbroker’s special skill to perpetrate his scheme; (5) two levels for Astorri’s income tax evasion conviction; (6) two levels for more than minimal planning; and (7) two levels for the extreme psychological injury inflicted upon Astorri’s victims. The district court credited Astorri with a downward adjustment of two levels for accepting responsibility. The total offense level calculated by the district court was twenty-three, which creates a guideline sentencing range of between 46 and 57 months.

II.

The first issue before us is whether Fed.R.Crim.P. 32 entitled Astorri to advance notice that the district court might make upward sentencing adjustments. Astorri argues he must be given an opportunity to prepare for the sentencing hearing. We conclude that Rule 32 does not entitle Astorri to advance notice.

Rule 32(a)(1) provides, in pertinent part: “At the sentencing hearing, the court shall afford counsel ... an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence.” Fed.R.Crim.P. 32(a)(1). According to the Rule, the purpose of a sentencing hearing is to provide the government and the defendant with an opportunity to present evidence to help the court to decide, among other things, whether and how it will adjust offense levels. The district court met the procedural requirements of Rule 32 by affording Astorri an opportunity to voice his objections after it found section 3A1.1 applicable, but before making an upward adjustment. The court gave Astorri an opportunity to be heard. That is all Rule 32 requires. See United States v. Cervantes, 878 F.2d 50, 56 (2d Cir.1989); cf. United States v. Burns, 893 F.2d 1343, 1348 (D.C.Cir.), cert. granted, — U.S.-, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990) (“Since the defendant had an opportunity to address the court before sentencing during his allocution and has a right to appeal his sentence, he has not been harmed by the trial court’s lack of notice.”).

III.

Next, we must decide if the district court erred by making a two-level upward adjustment on the grounds that Astorri’s victims were vulnerable. U.S.S.G. § 3A1.1 provides:

If the defendant knew or should have known that the victim of the offense was unusually vulnerable due to age, physical or mental condition, or that the victim was particularly susceptible to the criminal conduct, increase by 2 levels.

U.S.S.G. § 3A1.1.

The relevant Application Note provides:

This adjustment applies to offenses where an unusually vulnerable victim is made a target of criminal activity by the defendant. The adjustment would apply, for example, in a fraud case where the defendant marketed an ineffective cancer cure or in a robbery where the defendant selected a handicapped victim. But it would not apply in the case where the defendant sold fraudulent securities by mail to the general public and one of the victims happened to be senile.

U.S.S.G. § 3A1.1, Application Note 1.

Questions of whether a victim is “particularly susceptible to ... criminal conduct” inherently involve factual determinations. Such determinations are made by the sentencing judge who has the best opportunity to see the defendant and the victims. United States v. Mejia-Orosco, 868 F.2d 807, 809 (5th Cir.), cert. denied, — U.S.-, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). We review the district court’s factual findings in this context for clear error. 18 U.S.C. § 3742(e).

We find the district court did not err when applying section 3A1.1. The district court made findings that Astorri’s victims were vulnerable on two grounds: the investors’ ages and lack of sophistication; and Astorri’s victimization of his girlfriend’s parents. Since we decide the district court correctly applied section 3A1.1 based upon the way Astorri exploited his girlfriend’s parents, the Kronyaks, we need not decide whether the district court’s enhancement for the victims’ ages was correct. The district court found that the relationship between Astorri, his girlfriend and the Kronyaks, rendered the Kronyaks unusually susceptible to Astorri’s persistent requests for more investment funds. Astorri even went so far as to promise to marry the Kronyaks’ daughter in order to get additional money from them. It was not erroneous to find that because of the close relationship between Astorri and his girlfriend, her parents were vulnerable and “particularly susceptible” to his fraudulent investment scheme. That finding provides a sufficient basis to enhance Astorri’s offense level under section 3A1.1.

IV.

The next issue is whether the district court erred by enhancing Astorri’s base offense level for his tax evasion conviction. The court gave alternate grounds for its two level enhancement. First, the court concluded that if Astorri’s wire fraud and tax evasion convictions are grouped together.under section 3D1.2, then the specific offense characteristic of the tax evasion offense would increase the offense level by two because Astorri evaded taxes due on money generated by a criminal activity. In the alternative, the district court reasoned that if the two offenses were not grouped together because they involved different victims, the court could nonetheless enhance the fraud conviction base offense level under section 3D1.4(a).

Exercising plenary review of the district court’s construction and application of the guidelines, 18 U.S.C. § 3742(e), we will affirm the district court’s alternative enhancement under section 3D1.4(a). Our analysis nonetheless begins with section 3D1.2:

All counts involving substantially the same harm shall be grouped together into a single group.... Counts involve substantially the same harm within the meaning of this rule:

(a) When counts involve the same victim and the same act or transaction.

* sis * * * *

(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.

U.S.S.G. § 3D1.2 (emphasis supplied).

Under subsection 3D1.2(a), the tax evasion and fraud counts did not involve the same victims. While the various private investors suffered the harm of Astorri’s fraudulent stockbrokerage scheme, Astor-ri’s tax evasion targeted the government. Thus, grouping under section 3D1.2(a) is inappropriate.

As for subsection 3D1.2(c), Astorri argues the fraud count embodies conduct treated as a specific offense characteristic under the tax evasion offense and, therefore, section 3D1.2(c) requires grouping the two counts. Applying the rules of section 3D1.3, Astorri concludes that “the highest offense level is 17 relating to the fraud count.” Appellant’s Brief at 20. Astorri points out that the combined offense level guideline, U.S.S.G. § 3D1.4, is not applicable since it refers to multiple groups and his convictions constitute only one group. Therefore, he concludes that the district court may not apply a two level increase under that section.¹

Section 3D1.2(c) targets “conduct” embodied in one count that is treated as a “specific offense characteristic” in another count. The “specific offense characteristic” at issue here refers to the tax evasion count, section 2T1.1(b)(1). That section provides for a two level increase where:

(A) the defendant failed to report income exceeding $10,000 per year from criminal activity, or

(B) the offense concealed or furthered criminal activity from which the defendant derived a substantial portion of his income.

U.S.S.G. § 2T1.1(b)(1).

Neither of these specific offense characteristics constitutes conduct embodied in the fraud count. The government did not have to prove that Astorri engaged in tax evasion to convict him of fraud. Further, the fraud sentencing guideline does not address concealment of criminal activity or a failure to report criminally-derived income. See U.S.S.G. § 2F1.1.

Our distinction between the fraud and tax evasion counts is supported by the background commentary to the tax evasion offense:

Failure to report criminally-derived income is included as a factor for deterrence purposes. Criminally-derived income is generally difficult to establish, so that the tax loss in such cases will tend to be substantially understated.

Background Commentary, U.S.S.G. § 2T1.1.

Thus, the Commission included this specific offense characteristic to deter tax evasion. To include this specific offense characteristic as “conduct” in the fraud count negates its separate inclusion within the tax evasion guideline. We conclude that the two counts were quite properly not grouped together under section 3D1.2(c).

Since the fraud and tax evasion counts may not be grouped together, we treat them as two separate groups when applying section 3D1.4. Section 3D1.4(a) instructs us to “[cjount as one Unit the Group with the highest offense level [and] [c]ount one additional Unit for each Group that is equally serious or from 1 to 4 levels less serious.” (emphasis in original). In this case, the fraud count, at level 19, represented the group with the highest offense level. The court computed the tax evasion at an offense level of 15. Therefore, under section 3D1.4(a), the court correctly added two units or levels to the fraud offense calculation.

V.

The next issue is whether the district court erred by increasing Astorri’s fraud conviction four levels under section 2F1.1(b)(2). Since we are reviewing the district court’s application and construction of the guidelines, our standard of review is plenary. 18 U.S.C. § 3742(e). We conclude that the increase should have been limited to two levels.

At the time of sentencing,² section 2F1.-1(b)(2) read:

(2) If the offense involved (A) more than minimal planning, or (B) a scheme to defraud more than one victim, increase 2 levels. (Effective November 1, 1989.)

Imposing a four level increase when more than minimal planning and more than one victim are both present in a crime would undermine the intent of section 2F1.1(b)(2). The commentary to that section says:

Empirical analyses of current practices show that the most important factors that determine sentence length are the amount of loss and whether the offense is an isolated crime or is sophisticated or repeated.

sfc * * H" * *

The extent to which an offense is planned or sophisticated is important in assessing its potential harmfulness and the dangerousness of the offender, independent of the actual harm. A complex scheme or repeated incidents of fraud are indicative of an intention and potential to do considerable harm. In current practice, this factor has a significant impact, especially in frauds involving small losses. Accordingly, the guideline specifies a 2-/evel enhancement when this factor is present.

Background Commentary, U.S.S.G., § 2F1.1 (emphasis supplied). The enhancement factor represented by section 2F1.1 advises the sentencing court to look for complexity (more than minimal planning) or repetition (more than one victim) as signs of potential harm. If either characteristic is present, the commentary tells us to apply a two level increase. The commentary does not indicate a four level enhancement where both signs of harm are present. A two rather than a four level increase is proper under section 2F1.1 because where, as here, a defendant defrauds more than one victim, the scheme will often involve more than minimal planning, and vice-ver-sa.

Our holding finds support from other courts of appeals. United States v. Irabor, 894 F.2d 554, 556 (2d Cir.1990) (offense level increased by two points for “more than minimal planning and more than one victim”); United States v. Bolden, 889 F.2d 1336, 1339 (4th Cir.1989) (offenses involving “more than minimal planning,” and a “scheme to defraud more than one victim” raised level only two points.) See also United States v. Campbell, 878 F.2d 164, 165 (5th Cir.1989) (The district court added two points because the offense involved more than minimal planning and was aimed at more than one victim. The Court of Appeals vacated and remanded for “extreme departure” from the recommended guideline sentence without expressly approving or rejecting the court’s conclusion under section 2F1.1(b)(2).) But see United States v. Reyes, 908 F.2d 281, 289-90 (8th Cir.1990) (Offense level raised by four points for more than one victim and more than minimal planning.) Hence, we will remand to the district court for resentenc-ing.

VI.

Under section 5K2.3 of the Guidelines, the district court applied a two-level increase on the grounds that Astorri inflicted extreme psychological injury on his victims. Section 5K2.3 provides:

If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.

Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant’s conduct.

Astorri contends that the district court erred because there was “no evidence in the record that any of the victims suffered any psychological injuries as a result of the offense.” Appellant’s Brief at 26.

Since the district court followed a departure approved by the Sentencing Commission and Astorri challenges only the district court’s factual findings, we review only for clear error. 18 'U.S.C. § 3742(e). United States v. Ryan, 866 F.2d 604, 610 (3d Cir.1989) (“We conclude, in light of the general language of the guidelines indicating that if departure is authorized, the district courts are entitled to exercise a substantial amount of discretion in determining whether to depart from the guidelines ... ”).

The district court applied its extreme psychological injury increase by stating:

The factors in this case, which I think are significant, are the elderly victims who were the subject of this scheme to defraud, those who had life savings stolen including the Kronyaks, the Taylors, the Rosses and the Needles and those whose family home was forced to be sold as a result of this fraud, the Kronyaks. Those whose retirement plans were ruined, the Needles, the Taylors and the Kronyaks. Those whose children’s education fund was lost, the Browns. Those whose family relationships were imposed upon, here it’s the Kronyaks and Browns. Those who have suffered actual physical and psychological health effects, the Taylors and the Needles. And from my observation at the civil trial of this matter also the Kronyaks.

I have seen their reaction and the devastation which this scheme to defraud has inflicted upon them. I read Mr. Neu-berger’s letter concerning the situation of the Taylors; the extreme psychological effect that this scheme and the loss of their life savings had upon them.

It is my conclusion that this section for a departure should be considered.

App. at 19-20.

These findings are not erroneous. If there is any place in sentencing guidelines analysis where a fact-finder is to be given considerable deference, it is here where the district court is called upon to assess the psychological impact upon victims.

The district court based its findings both upon evidence supplied by the record and its own observations. The district court looked to the seriousness of the offense and its impact upon the well-being of Astorri’s victims and found that these circumstances warranted an upward departure. According to section 5K2.3, psychological injury is normally found where there is a chronic substantial impairment of a victim’s mental functioning resulting in physical, psychological or behavioral symptoms. Both the Needles and the Taylors suffered psychological injury under this definition. The Needles lost their life savings and their suffering will continue indefinitely. Mrs. Needles has been forced to seek treatment for high blood pressure as a result of Astorri’s scheme. She continues to be under a doctor’s care. The Taylors also lost their life savings and an inheritance from Astorri’s fraudulent dealings. Record evidence reveals that Mr. Taylor, already in poor health, displayed adverse physical and behavioral effects from those dealings.

The evidence supports the district court’s findings that Astorri’s victims suffered much more psychological injury than that normally resulting from the commission of a wire fraud offense. Where any one victim suffers substantial impairment, departure is justified under section 5K2.3. Here, at least Mrs. Needles and Mr. Taylor suffered extreme psychological injury. Thus, the court’s section 5K2.3 findings are supported by the evidence and consequently are not erroneous.

VII.

CONCLUSION

We conclude that the district court correctly enhanced Astorri’s offense level under the “vulnerable victim” adjustment, U.S.S.G. § 3A1.1, and correctly applied a two level upward departure for inflicting “extreme psychological injury” under section 5K2.3. We also conclude that the court properly treated the tax evasion and fraud counts as separate “groups,” adding two levels for Astorri’s tax evasion conviction under section 3D1.4(a). Nevertheless, we must vacate the judgment of sentence and remand this case for resentencing because the district court incorrectly increased Astorri’s guideline sentence by four levels rather than two under section 2F1.1(b)(2). We hold that a scheme to defraud more than one victim which requires more than minimal planning may only result in a two point base offense level increase under U.S.S.G. § 2F1.1.

1 . Astorri's analysis depends upon a supplemental illustration given by the sentencing commission.

Example C.6. The defendant is convicted of one count of theft and one count of income tax evasion for evading taxes on the income obtained from the theft.

Proper grouping depends on the specific facts. The tax evasion guideline contains a specific offense characteristic § 2T1.1(b)(1), that increases the offense level if the defendant failed to report income exceeding $10,000 per year from criminal activity, or if the offense concealed or furthered criminal activity from which the defendant derived a substantial portion of his income. If either of these characteristics applies, the counts are grouped together under § 3D1.2(c); otherwise, they are not.

The Commission’s supplemental illustration does not bind us nor do we find it necessary for our analysis.

2 . We apply the guidelines in effect at the time of sentencing. United States v. Cianscewski, 894 F.2d 74, 77 n. 6 (3d Cir.1990). Astorri was sentenced on April 23, 1990.