United States v. Grecco

Citation: 342 F. App'x 739Docket: No. 08-4102

Court: Court of Appeals for the Third Circuit; August 19, 2009; Federal Appellate Court

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Defendant-Appellant Aan Grecco was convicted of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) and conspiracy to commit murder, leading to a sixty-five-year sentence. His conviction was affirmed on direct appeal. On February 22, 2008, Grecco filed for sentencing relief under 18 U.S.C. 3582(c)(2), arguing that Amendment 591 to the United States Sentencing Guidelines (USSG), which is retroactive, invalidated the sentencing calculation. The District Court denied this motion on September 26, 2008, prompting Grecco's appeal. Grecco and co-defendant Louis Gatto were indicted on July 20, 1989, for illegal gambling activities under RICO, with the indictment citing six predicate acts, specifically the conspiracy to murder Vincent Mistretta. Following their conviction on June 19, 1991, the District Court adopted guidelines from the Presentence Report (PSR) that calculated Grecco’s offense level based on USSG 2E1.1, which considers the greater of a base offense level of 19 or that applicable to the underlying racketeering activity. The PSR treated the conspiracy to commit murder as the underlying offense, leading to disputes over which edition of the Sentencing Guidelines to apply. This was significant because Amendment 311, effective November 1, 1990, altered the offense level for conspiracy to commit murder from 20 to 28, affecting the overall sentencing calculation.

Grecco objected to the imposition of the 1991 Sentencing Guidelines at sentencing, claiming they violated ex post facto principles because they resulted in a higher base offense level compared to the 1988 Guidelines. The District Court ruled that Amendment 311 did not affect its Guidelines calculations, ultimately setting Grecco's base offense level for Racketeering Act 3 at 43 under USSG 2A1.1, with an additional 4 levels added for his role in the offense, resulting in a total offense level of 47. Although this level would typically result in a life sentence, the District Court imposed a twenty-year statutory maximum for each of Grecco’s RICO convictions, leading to a cumulative sentence of 65 years, which was affirmed on direct appeal.

On February 22, 2008, Grecco filed a motion for relief under 18 U.S.C. 3582(c)(2), arguing that the court should have applied USSG 2A1.5 instead of USSG 2A1.1 for the conspiracy to murder Vincent Mistretta. He contended that the application of USSG 2A1.1 contradicted retroactive Amendment 591 to the Guidelines. In a September 26, 2008 ruling, the District Court acknowledged that USSG 2A1.5 should have been applied but concluded it would not have altered Grecco’s sentencing range due to the death of Mistretta triggering a cross-reference to USSG 2A1.1. Consequently, the court denied Grecco’s motion for relief, referencing a non-precedential opinion, United States v. Davis.

The government supported the District Court's ruling, arguing that Amendment 591 did not affect the sentencing calculation because the court had complied with it prospectively. Therefore, Grecco's motion was rightly denied as Amendment 591 did not lower the applicable sentencing range. This position aligned with another non-precedential ruling, United States v. Sparacio. The review of the District Court's interpretation of the Sentencing Guidelines is conducted de novo, while decisions on motions for sentence reductions are reviewed for abuse of discretion. The appellate court indicated it could affirm the District Court’s decision based on any record-supported grounds.

18 U.S.C. § 3582(c)(2) allows for a modification of a defendant's term of imprisonment if the sentencing range has been lowered by the Sentencing Commission. This statute creates an exception to the general rule prohibiting modifications after sentencing. Two eligibility requirements must be met for relief under § 3582(c)(2): the defendant must have been sentenced based on a range that has subsequently been lowered, and any reduction must be consistent with the Sentencing Commission's policy statements. If these requirements are not satisfied, the court lacks jurisdiction to grant a reduction. The term "based on a sentencing range that has subsequently been lowered" refers to the final guideline calculation, not interim results, meaning if an amendment does not affect the sentencing range used, relief is unavailable. The applicable policy statements are detailed in USSG § 1B1.10, which outlines conditions where a reduction is not authorized, such as when the amendments do not apply to the defendant or do not lower their guideline range. These limitations are mandatory and binding.

Under USSG 1B1.10(a)(2)(B), the "applicable guideline range" refers to the sentencing range determined by the court after following USSG 1B1.1 steps. The policy statements in USSG 1B1.10(a)(2) align with the 3582(c)(2) requirement that a defendant must have been sentenced based on a guideline range subsequently lowered. Relief under 3582(c)(2) is available only if a guidelines amendment listed in USSG 1B1.10(c) impacts the guideline range or sentence used in the original sentencing. This eligibility rule must be established before the court considers whether a sentence reduction is warranted.

In this case, Grecco's 3582(c)(2) motion is based on Amendment 591, effective November 1, 2000. The Third Circuit in United States v. Diaz determined that Amendment 591 introduced a substantive change to the Guidelines but could not be applied retroactively. Amendment 591 modified the guidelines to require mandatory application of the offense guideline referenced in the Statutory Index for the statute of conviction, replacing previous permissive language. Grecco contends that the District Court's application of USSG 2A1.1 (first degree murder) instead of USSG 2A1.5 (conspiracy to commit murder) violates Amendment 591, asserting that the jury found the Racketeering Act was the conspiracy to murder, not the murder itself. Grecco challenges the use of USSG 2A1.1 based on relevant conduct findings related to the murder and the implications of conspiracy leading to Mistretta's death.

Grecco argues that using relevant conduct findings to select an applicable offense guideline violates Amendment 591, but he inadequately addresses the amendment's implications. He fails to recognize that the sentencing court properly used USSG 2E1.1 for RICO convictions, which correlates with the Statutory Index for 18 U.S.C. 1962. Grecco does not justify why Amendment 591 should influence the application of the USSG 2E1.1(a)(2) cross-reference regarding the conspiracy to murder Mistretta, which, while a predicate for his RICO conviction, is not considered an offense of conviction under Amendment 591. His underlying criminal activity is relevant only for cross-referencing, not covered by the amendment. Although the case of Diaz does not explicitly define the scope of Amendment 591, it is clear that the amendment pertains solely to the initial selection of an offense guideline. This conclusion is supported by the amendment's structure and purpose, as well as by other court rulings. The guidelines application process involves specific steps outlined in USSG 1B1.1, with the first two steps being crucial for this appeal. The first step is determining the applicable offense guideline section, while the second involves establishing the base offense level and applying relevant conduct, unless otherwise specified. Amendment 591 revised only the first step, leaving the use of relevant conduct in subsequent steps unaffected. Thus, while it altered the selection process at step one, it did not eliminate the role of relevant conduct in the overall guidelines calculation. The Sentencing Commission's rationale supports this interpretation.

The Commission aimed to address issues arising from courts using pre-Amendment language to deviate from offense guidelines in the Statutory Index. Amendment 591 clarified that relevant conduct findings are relevant at certain steps under USSG 1B1.3(a), but it does not alter the application of cross references based on these findings. In this case, the District Court correctly identified USSG 2E1.1 as the appropriate guideline for Grecco's RICO conviction, and this determination remains unchanged post-Amendment 591. Consequently, Amendment 591 does not affect Grecco's eligibility for a sentence reduction under 18 U.S.C. 3582(c)(2), leading to the affirmation of the District Court’s denial of his motion. The document also reflects on the common use of the term 'retroactive' amendments in the context of 18 U.S.C. 3582(c)(2) for sentence reductions, despite some judicial skepticism regarding the term. It reiterates that sentencing courts utilize the Guidelines edition in effect at sentencing unless it violates the Ex Post Facto Clause. The Guidelines applicable at Grecco’s sentencing were the November 1, 1991 edition, while the October 15, 1988 edition was relevant for actions prior to his sentencing. The District Court mistakenly stated that USSG 2A1.1 covered conspiracy to commit murder; it was actually USSG 2A1.5 that applied at that time. Prior to Amendment 311, conspiracy to commit murder fell under the attempted murder guideline, USSG 2A2.1.

Grecco contends that the District Court incorrectly applied the sentencing guidelines regarding Racketeering Act 3, specifically arguing that USSG 2A1.1 was used for conspiracy to commit murder, a claim the government disputes. The parties agree that Racketeering Act 3 pertains to conspiracy and that the District Court appropriately selected the base offense level under USSG 2A1.1 using USSG 2E1.1(a)(2) for 'underlying racketeering activity.' Grecco’s current argument for applying USSG 2A1.5 (1991) contradicts his previous stance against its application during the original sentencing. This change requires consideration of two factors: first, at the 1991 sentencing, he proposed USSG 2A2.1 (1988) on ex post facto grounds, which was rejected; second, he now argues that the USSG 2A1.5(c)(1) cross reference to USSG 2A1.1 is inapplicable, despite the PSR, accepted by the District Court, indicating that Grecco's conspiracy resulted in Mistretta's death. Grecco’s counsel had the opportunity to contest the PSR's factual findings but did not do so. The Court references its previous rulings distinguishing between the requirements of 18 U.S.C. 3582(c)(2) and USSG 1B1.10(a)(2)(B), noting that both lead to the same conclusion. The summary will use the 1991 Guidelines in effect at Grecco's sentencing and the 2000 amended versions where applicable. Relevant conduct is broadly defined, encompassing all actions related to the offense, including those of co-conspirators.