United States v. Robert H. Demaio

Citations: 28 F.3d 588; 1994 U.S. App. LEXIS 16101; 1994 WL 278578Docket: 93-2795

Court: Court of Appeals for the Seventh Circuit; June 24, 1994; Federal Appellate Court

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Robert DeMaio was arrested on July 6, 1992, for possession with intent to distribute over 100 kilograms of marijuana and conspiracy related to the same. Prior to his arrest, he and Leonard Hayes delivered 100 pounds of marijuana to a confidential informant (CI), who paid Hayes approximately $70,000, leaving an outstanding balance of $58,000. DeMaio later received around $19,000 from the CI, with a remaining balance of approximately $39,000. Under surveillance, the CI subsequently paid DeMaio about $40,000, leading to DeMaio's arrest, during which law enforcement seized 363 pounds of marijuana from his vehicle.

Following his arrest, DeMaio was detained at the Marion County Jail. He requested a temporary transfer for medical treatment, which was granted, allowing him to go to Wishard Hospital. On September 18, 1992, DeMaio and the government jointly petitioned for his release on bond to the Volunteers of America Residential Work Release Center (VOA), citing health issues. The court approved this request, stipulating that DeMaio would not receive a pass for any purposes and allowing the court to decide on credit for his time served there.

On November 12, 1992, DeMaio entered a plea agreement guilty to both counts of the indictment, each carrying a minimum sentence of 60 months. Under the agreement, he pledged to cooperate with the government, which would file a motion acknowledging his substantial assistance, potentially leading to a lesser sentence than the mandatory minimum. The district court accepted the plea agreement on the same day.

The government filed a motion for a downward departure in DeMaio's offense level due to his substantial assistance. DeMaio sought further downward adjustments based on three arguments: his minimal role in the offense, his age and poor health, and time served at the VOA, asserting that he would not receive credit for this time under Bureau of Prisons policies. The district court rejected these additional arguments, citing precedent from United States v. Thomas, which restricts downward departures below a statutory minimum to cases of substantial assistance. The court calculated DeMaio's sentence starting from a mandatory minimum of sixty months due to his guilty plea and established an offense level of twenty after a four-level reduction for substantial assistance, resulting in a sentence of thirty-three months imprisonment and four years of supervised release, along with a $100 special assessment fee. On appeal, DeMaio's counsel acknowledged that established case law limits the grounds for downward departure to substantial assistance, confirming the district court's decision.

DeMaio acknowledges that he will not receive credit for time served at the VOA unless a downward departure is granted. Citing Ramsey v. Brennan, the court noted that time spent in a halfway house does not qualify for sentence credit under 18 U.S.C. Sec. 3568, which was later replaced by 18 U.S.C. Sec. 3585 without a change in the application regarding credit. DeMaio argues he deserves an additional downward departure under section 5K1.1 due to the time spent at the VOA, claiming it allowed him to prepare to testify against Leonard Hayes, as his health could have deteriorated if he remained in the Marion County Jail. However, DeMaio did not raise this argument in the district court, only claiming a departure under U.S.S.G. Sec. 5K2.0 for uncredited time. Consequently, this argument is waived. Even if considered, the court finds insufficient evidence that his detention at the VOA constituted substantial assistance, as DeMaio's medical issues were not severe enough to prevent him from testifying had he been at the Marion County Jail, and there is no proof that the medical care at the VOA was superior to that available at the jail.

The district court's decision is affirmed. Judge Ilana Diamond Rovner concurs in part and concurs in the judgment, agreeing that Mr. DeMaio's confinement at the VOA does not warrant a further downward departure under section 5K1.1 of the Guidelines. However, she expresses doubt regarding whether the ten months Mr. DeMaio spent at the VOA can be excluded from "official detention" under 18 U.S.C. § 3585(b). DeMaio was ordered detained pending trial, and his transfer to the VOA was partly due to his medical needs, suggesting that precedent in Ramsey v. Brennan may not apply due to changes in statutory language. The current review focuses solely on DeMaio's sentencing rather than potential credit issues with the Bureau of Prisons. Although the BOP might deny credit for the VOA period, the outcome of any challenge to that decision is not predetermined. DeMaio faced two charges related to marijuana distribution. The government had recommended a one-level downward departure for his substantial assistance, but the district court opted for a four-level downward departure instead. The Application Note to section 5K1.1 emphasizes the importance of the government’s assessment of the defendant's assistance, yet the government did not contest the district court's decision on the downward departure.