United States v. Jack J. Minicone, Jr., Also Known as Jake, Jack Zogby, Also Known as Turk Anthony J. Inserra Benedetto Carcone, Also Known as Benny Russell E. Carcone

Citations: 26 F.3d 297; 1994 U.S. App. LEXIS 14425Docket: 1049

Court: Court of Appeals for the Second Circuit; June 7, 1994; Federal Appellate Court

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The United States Court of Appeals for the Second Circuit reviewed the case of Jack J. Minicone, Jr., who was convicted in January 1991 of conducting and conspiring to conduct the affairs of an enterprise through racketeering activities, violating 18 U.S.C. Sec. 1962(c) and (d). His conviction stemmed from involvement in a criminal enterprise in Utica, NY, between 1973 and 1989, which included extortion, loansharking, illegal gambling, and murder, specifically the 1976 murder of Al Marrone. 

Minicone was sentenced to 379 months in prison, which was below the sentencing guidelines of 480 months due to his minor role in the murder and the victim's misconduct. The Government appealed this sentence. The Court vacated the district court's sentence and remanded the case, instructing that the statutory maximum of 480 months be imposed, emphasizing the seriousness of Minicone’s conduct in the context of his criminal activities. The appeal follows a lengthy legal process, marking the third significant judicial opinion on Minicone's sentencing.

Minicone was implicated in the attempted murder of Thomas Bretti in 1983, where he tried to kill Bretti by placing a bomb at his home, resulting in serious injuries. He was also involved in various criminal activities, including ordering thefts from bookmakers, extorting them, collecting bets, engaging in loansharking, and conspiring to kill a suspected informant. Initially a low-level member of the criminal organization, he became prominent by the late 1980s, working directly for the boss, Anthony Falange.

In his Pre-sentence Report, the Probation Department set Minicone's offense level at 43 with a Criminal History Category (CHC) of II, suggesting a life sentence. However, the statutory maximum for his convictions was 480 months. Minicone requested a downward adjustment for his role in the Marrone murder and argued that provocation from Marrone justified a downward departure. The district court denied these requests, affirmed the calculated offense level and CHC, but sentenced Minicone to a total of 391 months to align with co-defendants’ sentences.

Minicone and his co-defendants appealed their convictions, and the Government cross-appealed regarding his sentence. The appellate court upheld the convictions but vacated Minicone's sentence, instructing resentencing according to the Guidelines. The court found Minicone's claims regarding his minor role and provocation unmeritorious, and noted the district court improperly used co-defendant disparity as a basis for downward departure.

Upon remand, without new evidence, the district court reconsidered Minicone's requests. It denied the departure for provocation but granted a two-level reduction for his minor role, adjusting his offense level to 42, leading to a Guidelines range of 360 months to life. Ultimately, he was sentenced to 379 months, one year less than the original sentence, prompting another appeal by the Government.

The district court erred by reconsidering Minicone's involvement in the Marrone murder, having previously addressed this issue in the first appeal, as established in Minicone II. The court found no grounds for reevaluating Minicone's role, citing no changes in law or facts that warranted such reconsideration. Consequently, the case was remanded for resentencing consistent with earlier rulings.

During the second resentencing on July 21, 1993, Minicone sought a downward departure under section 5K2.10 due to alleged victim misconduct. Despite government opposition, the district court again granted a downward departure from the sentencing guidelines, imposing consecutive sentences totaling 379 months. The court acknowledged that Marrone's misconduct alone did not justify a departure but considered a combination of factors, including Minicone's lesser involvement compared to other defendants, his age at the time, and the violent nature of the victim, who had threatened Minicone. The court clarified that while Minicone's actions were illegal and punishable, they were somewhat influenced by the victim's behavior. 

The departure resulted in a one-level reduction in Minicone's offense level, equating to a five-percent decrease. The court stated that the imposed sentence fell within the range for second-degree murder under New York law at the time of the offense. The government has appealed this sentence.

The 'law of the case' rule prohibits a district court from revisiting or altering prior decisions that have been addressed by the court of appeals, as established in Minicone II, 994 F.2d at 89. However, the district court retains the authority to review issues not previously ruled upon by the appellate court. The appellate court may reconsider its past rulings under specific circumstances, such as changes in controlling law, new evidence, or the need to rectify clear errors or prevent manifest injustice. Since the Minicone II decision, no new events warrant reconsideration. The district court correctly determined it could not reduce Minicone's sentence based on his 'minor role' in the offense or the characteristics of the victim, as those arguments were previously rejected in Minicone I and II. Furthermore, the district court's attempt to merge these two factors into a single ground for departure from the sentencing guidelines was deemed improper. A district court may only depart from the guidelines if it identifies significant aggravating or mitigating circumstances not adequately addressed by the Sentencing Commission. In this case, the district court failed to demonstrate that the factors considered were atypical or not adequately taken into account by the Commission. Both times the appellate court reviewed Minicone's conduct for potential downward departure, it concluded that such a departure was not justified.

A combination of factors that have been adequately addressed by the Sentencing Guidelines cannot be used to justify a downward departure from sentencing. Courts, including the Fourth and First Circuits, have ruled that cumulative factors, such as drug addiction or family responsibilities, do not provide sufficient grounds for departure if considered independently they would not warrant such action. The Third Circuit emphasized that typical factors do not make a case unusual enough to warrant departure, as doing so could undermine the uniformity intended by the Guidelines. Furthermore, disparities between federal and state sentencing cannot justify a departure, as allowing such variance would compromise the consistency of federal sentencing. The district court's aim to align federal sentences with state law was deemed improper, and mere dissatisfaction with the Guidelines is insufficient justification for departure. Ultimately, the court vacated Minicone's sentence, ordering a remand for resentencing with a directive to impose the statutory maximum of 480 months.