United States v. Enrico Ponzo

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 2018
• Docket: 16-30115
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30115

Plaintiff-Appellee, DC No. CR 12-0035 EJL

v. MEMORANDUM* ENRICO M. PONZO,

Defendant-Appellant.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

Argued and Submitted April 12, 2018 Seattle, Washington

Before: TASHIMA and GRABER, Circuit Judges, and MIHM,** District Judge.

Defendant-Appellant Enrico Ponzo appeals the sentence he received after

pleading guilty to unlawful possession of firearms under 18 U.S.C. § 922(g)(1).

Ponzo, a member of the Patriarca Family of La Cosa Nostra, fled Massachusetts in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael M. Mihm, United States District Judge for the Central District of Illinois, sitting by designation. the 1990s after being charged with a host of federal crimes. See generally United

States v. Ponzo, 853 F.3d 558 (1st Cir. 2017), cert. denied, 138 S. Ct. 980 (2018).

Ponzo was eventually found in 2011 living under the alias “Jay Shaw” in Idaho,

and this case involves the charges he faced for firearms and other materials found

on his Idaho property. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. The district court did not abuse its discretion in denying Ponzo’s

request for funds for a mental examination. “A district court . . . abuses its

discretion in denying an expert ‘where (1) reasonably competent counsel would

have required the assistance of the requested expert for a paying client, and (2) the

defendant was prejudiced by the lack of expert assistance.’” United States v. Pete,

819 F.3d 1121, 1130 (9th Cir. 2016) (quoting United States v. Rodriguez-Lara, 421

F.3d 932, 940 (9th Cir. 2005)). Ponzo failed to demonstrate either necessity or

prejudice, particularly in light of his own contradictory statements regarding why

he possessed so many firearms. At best any prejudice is speculative, which is

insufficient to show an abuse of discretion. See United States v. Chase, 499 F.3d

1061, 1068 (9th Cir. 2007) (“The prejudice . . . must be demonstrated by clear and

convincing evidence.”).

2 2. The district court did not abuse its discretion when it declined to hold

an evidentiary hearing, did not continue Ponzo’s sentencing, and did not permit

Ponzo to subpoena a deputy from the Ada County Jail. The district court afforded

Ponzo a reasonable opportunity to present evidence about his conduct in jail. See

United States v. Laurienti, 731 F.3d 967, 971–72 (9th Cir. 2013). The district

court limited Ponzo’s statements only when he began to discuss his civil claims

against the jail. Ponzo failed to carry his burden of showing the necessity of the

deputy’s testimony, particularly because he was able to provide his version of the

relevant events in his sentencing papers and during sentencing. Fed. R. Crim. P.

17(b); see also United States v. Smith, 924 F.2d 889, 896 (9th Cir. 1991). At

sentencing, Ponzo also claimed to have other evidence related to these incidents,

but never provided it to the court nor asked for a continuance to provide it, and

never mentioned the subpoena request. See United States v. Lewis, 991 F.2d 524,

528–29 (9th Cir. 1993) (explaining that the defendant must show denial of

continuance “prejudiced his defense” and “establish the substance of the witness

testimony he could have obtained with more time”). There was thus no error in

relying on information about Ponzo’s conduct in the jail.

3. The district court did not err in denying Ponzo an offense level

reduction, applicable when the defendant “possessed all ammunition and firearms

3 solely for lawful sporting purposes or collection, and did not unlawfully discharge

or otherwise unlawfully use such firearms or ammunition.” U.S.S.G. §

2K2.1(b)(2) (emphasis added). Even if the district court erred in interpreting this

reduction, Ponzo failed to challenge on appeal the enhancement that the court

imposed, applicable when the defendant “used or possessed any firearm or

ammunition in connection with another felony offense.” Id. § 2K2.1(b)(6)(B)

(emphasis added). The record supports the district court’s finding that Ponzo

possessed at least one of the 33 firearms in connection with his flight from

prosecution and ongoing efforts to evade detection, as evidenced by Ponzo’s own

admissions that he initially fled Massachusetts fearing for his life and the fact that

the firearms were found nearly two decades later on his property in Idaho with

false identification materials. In light of this finding, Ponzo was ineligible for the

reduction. See United States v. Ellis, 241 F.3d 1096, 1099, 1101 (9th Cir. 2001).

4. Even reviewing de novo, see United States v. Plascencia-Orozco, 852

F.3d 910, 916 (9th Cir.), cert. denied, 138 S. Ct. 412 (2017), we agree that the

government did not breach the plea agreement. The government agreed to

“recommend a sentence within the guidelines” and the guidelines here

recommended that Ponzo’s sentence run concurrently with his Massachusetts

sentence; however, the plea agreement also stated that both parties were “free to

4 recommend that the sentence run concurrently, partially concurrently, or

consecutively to” Ponzo’s Massachusetts sentence. The government’s argument in

favor of a consecutive sentence was thus explicitly permitted by the plea

agreement.

5. The district court’s 46-month, partially consecutive sentence was both

procedurally and substantively reasonable. “A sentencing judge must explain a

sentence sufficiently to communicate ‘that a reasoned decision has been made’ and

‘permit meaningful appellate review.’” United States v. Rudd, 662 F.3d 1257,

1260 (9th Cir. 2011) (quoting United States v. Carty, 520 F.3d 984, 992 (9th Cir.

2008) (en banc)). We are satisfied the district court did so here.

In fashioning a sentence that took account of the relevant factors under 18

U.S.C. § 3553(a), the district court acknowledged Ponzo’s recent positive conduct

in Idaho, but also noted his La Cosa Nostra affiliation, his negative conduct in jail,

and the fact that his prior criminal history did not deter him from continuing to

engage in criminal activity in his new life as “Jay Shaw.” Although imposing a

partially consecutive sentence constituted an upward variance, this court “must

give due deference to the district court’s decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.” Gall v. United States, 552 U.S. 38, 51

(2007). The district court’s rationale for requiring Ponzo to serve some of his

5 Idaho sentence consecutive to his sentence in Massachusetts was sufficiently

articulated, and finds support in the totality of the circumstances. See Carty, 520

F.3d at 992–93. Because we are not left with the definite and firm conviction that

the district court committed a clear error of judgment, we conclude that the

sentence is reasonable. See United States v. Ressam, 679 F.3d 1069, 1086–87 (9th

Cir. 2012) (en banc).

AFFIRMED.