United States v. Salerno

210 F. App'x 173
CourtCourt of Appeals for the Third Circuit
DecidedDecember 13, 2006
Docket05-3627
StatusUnpublished
Cited by1 cases

This text of 210 F. App'x 173 (United States v. Salerno) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Salerno, 210 F. App'x 173 (3d Cir. 2006).

Opinion

OPINION

AMBRO, Circuit Judge.

Michael Salerno challenges the reasonableness of his sentence imposed for a tax fraud conviction in the United States District Court for the District of New Jersey. He argues that the Court erroneously denied his motion for a sentencing departure and unreasonably sentenced him at the high end of the federal Sentencing Guidelines range for his underlying offense. We review the sentence for reasonableness and, for the reasons set forth below, affirm.

I.

We highlight only the facts relevant to our decision. In February 2005 Salerno pled guilty to one count of an eighteen-count indictment for failing to collect or pay taxes owed in violation of 26 U.S.C. § 7202, resulting in a tax loss to the Government of $152,501. In return for his plea, the Government dismissed the remaining counts.

Prior to sentencing, Salerno filed a motion for a sentencing departure. At sentencing in July 2005, the District Court denied his motion and sentenced him to 21 months’ imprisonment, a supervised release term of three years, $3,000 in restitution payments, four special conditions governing his future financial transactions, and a mandatory $100 special assessment.

Salerno appeals to us, asserting three claims. He argues that the District Court should have sentenced him according to a lower offense level, it erred by denying his motion for a downward departure, and it failed to consider all of the relevant sentencing factors of 18 U.S.C. § 3553(a). 1

II.

Since United States v. Booker rendered the Guidelines advisory, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have clarified several times that sentencing is a three-step process, which proceeds as follows:

(1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker.
(2) In doing so, they must “formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and tak[e] into account [our] Circuit’s pre-Booker case law, which continues to have advisory force.”
(3) Finally, they are required to “exercise[] [their] discretion by considering the relevant [§ 3553(a) ] factors” in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines. 2

*175 United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006) (internal citations omitted). In this context, we address Salerno’s arguments.

Regarding whether the offense level calculation was too high, the record shows that the Judge already considered Salerno’s acceptance of responsibility when determining his offense level. The Judge determined the base offense at sixteen under the Guidelines. See U.S.S.G. § 2T4.1(F) (stipulating a base offense level of 16 for a tax loss more than $80,000 but less than $200,000). He adjusted that level to 13 by subtracting two points for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a) and an additional point for acceptance of responsibility upon motion by the Government pursuant to U.S.S.G. § 3El.l(b). Combined with a criminal history category of II for a prior fraud conviction, the resulting Guidelines sentencing range was 15 to 21 months. In short, the Judge properly considered Salerno’s acceptance of responsibility and calculated his sentence accordingly, just as step one of the sentencing process requires.

As to his second claim, Salerno fails to understand that “[w]e have no authority to review discretionary denials of departure motions in calculating sentencing ranges.” United States v. Jackson, 467 F.3d 834, 839 (3d Cir.2006). Prior to Booker, when a judge recognized his or her authority to depart but chose not to do so, we inferred that the district court’s refusal to depart was discretionary. See, e.g., United States v. D’Angelico, 376 F.3d 141, 142 (3d Cir.2004); United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994). That continues post-Booker. See Jackson, 467 F.3d at 840 (“Pre-Booker law regarding Guidelines departures ... necessarily informs the sentencing process — for district courts and for us.”) (citations omitted).

Here, the departure denial was discretionary in that the Judge clearly recognized his authority to depart, but chose not to do so. During the sentencing hearing, he explicitly considered each of Salerno’s five theories upon which the departure motion rested: his attempts to cooperate with the I.R.S., an extraordinary family situation, the aberrant nature of his crime of conviction, the possibility of substituting community confinement for imprisonment, and an overstated criminal history. The Judge observed that Salerno had not, in fact, cooperated with the I.R.S., as he failed to submit corrected tax returns pursuant to his promise in his plea agreement; his family situation was not compelling because he was in the process of separating from his child’s mother and was not the child’s only caretaker; his crime of conviction was not aberrant because he had a prior criminal conviction for fraud; he did not satisfy the Guidelines requirements for community confinement, which typically involved drug addiction and treat *176 ment programs; and his criminal history category of II was not overstated because it merely reflected his previous felony conviction in state court for theft by deception. The Judge concluded his review as follows:

I do have the authority to engage in the downward departure or variance. I find for the reasons stated that the defendant has not established that this case ... falls outside the heartland of cases which have been categorized under the guidelines. Using the guidelines as an advisory source and taking into account the benefit of application notes and policy statements and the language of the guidelines itself, the motion is denied. We, therefore, will sentence Mr. Salerno with criminal history category [II], level 13, with a guideline sentence range of 15 to 21 months.

The Judge could not have signaled more clearly that he considered and denied the motion for downward departure as an exercise of his discretion. We therefore have no authority to review his denial in calculating Salerno’s Guidelines range.

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Bluebook (online)
210 F. App'x 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-salerno-ca3-2006.