US v. Carrozza
Case Date: 09/16/1993
Court: United States Court of Appeals
Docket No: 92-1798
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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 92-1798 UNITED STATES OF AMERICA, Appellee, v. ROBERT F. CARROZZA, Defendant, Appellant. ____________________ No. 92-1868 UNITED STATES OF AMERICA, Appellee, v. RAYMOND J. PATRIARCA, Defendant, Appellant. ____________________ No. 92-2213 UNITED STATES OF AMERICA, Appellant, v. RAYMOND J. PATRIARCA, Defendant, Appellee. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge] ___________________ ____________________ Before Boudin, Circuit Judge, _____________ Campbell, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________ ____________________ Martin G. Weinberg with whom Oteri, Weinberg & Lawson, John F. ___________________ __________________________ _______ Cicilline, Kimberly Homan and Sheketoff & Homan were on briefs for _________ ______________ __________________ Raymond J. Patriarca. James L. Sultan with whom Rankin & Sultan was on brief for ________________ ________________ Robert F. Carrozza. James D. Herbert, Assistant United States Attorney, with whom _________________ A. John Pappalardo, United States Attorney, Jeffrey Auerhahn, ____________________ _________________ Assistant United States Attorney, and Gregg L. Sullivan, Assistant __________________ United States Attorney, were on briefs for the United States. ____________________ September 16, 1993 ____________________ CAMPBELL, Senior Circuit Judge. Raymond J. _______________________ Patriarca pled guilty to one count of conspiring to violate the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. 1962(d), one count of violating RICO, 18 U.S.C. 1962(c), four counts of interstate travel in aid of racketeering, 18 U.S.C. 1952 (the "Travel Act"), and one count of conspiring to violate the Travel Act. He was sentenced by the United States District Court for the District of Massachusetts to a prison term of 97 months, three years of supervised release, a $50,000 fine, $122,344 costs of incarceration, and $3,954 costs of supervision. Pursuant to 18 U.S.C. 3742(b), the government appeals from the district court's determination that the relevant conduct for sentencing purposes in this RICO case is limited to just the predicate Travel Act violations charged against Patriarca and conduct relating directly to those charged predicates. Patriarca appeals from the district court's upward departure under U.S.S.G. 4A1.3 and from the district court's imposition of the costs of incarceration and supervision under U.S.S.G. 5E1.2(i). Robert F. Carrozza appeals from a 228-month sentence imposed by the district court after Carrozza pleaded guilty to 49 counts of racketeering-related offenses. Carrozza argues that the district court's decision to -3- "assume" that his base offense level should be adjusted upwards for his role in the offense constituted plain error. I. Patriarca's Sentence ____________________ A. Background __________ Count One of the indictment charged Patriarca and seven codefendants with participation in a criminal conspiracy to violate the RICO statute. Count Two charged the same defendants with a substantive violation of the RICO statute. The remaining 63 counts charged related racketeering acts involving different defendants, including in Count 30 a conspiracy to violate the Travel Act. The RICO charges alleged that the Patriarca Family had committed illegal activities over a period of 14 years. They identified the defendants as members of a nationwide criminal organization known as La Cosa Nostra, and described Patriarca's role, after July 1984, as the boss and ultimate supervisor of the Patriarca Family. The RICO counts alleged that the Patriarca Family, named as the RICO enterprise, acted in conformity with the rules of La Cosa Nostra, including the requirement that members commit murder at the direction of their superiors. It was further alleged that members of the Patriarca Family were required to obey their superiors and commit criminal acts at their direction, including murder. Members of the Patriarca Family were allegedlyrequiredto sharetheirillegalprofitswiththeirsuperiors. -4- The indictment alleged that the Patriarca Family was in the business of extortion, narcotics trafficking, loansharking, gambling, and murder. The indictment charged the commission of a total of 68 separate, predicate acts, most of them by defendants other than Patriarca. The predicate racketeering acts in which Patriarca was personally named were five violations of (and conspiracy to violate) the Travel Act, four of which were also charged as substantive violations against Patriarca in Counts 31, 36, 38 and 39. Prior to Patriarca's entry of a guilty plea, the government informed the court and Patriarca that it would seek to include specific acts of relevant conduct, pursuant to U.S.S.G. 1B1.3, in determining Patriarca's base offense level, and would further seek upward departures pursuant to U.S.S.G. 4A1.3 and 5K2.0. As an example of relevant conduct, the government then cited Patriarca's involvement in the narcotics trafficking of Patriarca's associate, Salvatore Michael Caruana. As an example of conduct justifying an upward departure, the government cited the murder of Vincent James Limoli, which was charged against one of Patriarca's codefendants. On December 3, 1991, Patriarca pled guilty without having entered into any agreement with the government. In the sentencing proceedings that ensued, the government asked the court to consider seven instances of relevant conduct, -5- along with the charged conduct, in determining Patriarca's base offense level for his RICO offenses. These instances were (1) Patriarca's involvement in the drug trafficking of Caruana; (2) Patriarca's efforts to harbor Caruana as a fugitive; (3) the murder of Limoli; (4) the murder of Theodore Berns, which was committed by Caruana purportedly because Berns was involved with Caruana's wife; (5) the narcotics activities charged against codefendant Robert Carrozza; (6) Patriarca's alleged authorization of an attempt to murder Vincent Ferrara; and (7) the harboring of La Cosa Nostra member, Alphonse Persico, while he was a fugitive from justice. Of these acts, only the Limoli murder and Carrozza's drug trafficking had been mentioned in the indictment, these two acts having been charged as predicate acts against Patriarca's codefendants (not Patriarca himself). The government acknowledges that Patriarca had direct personal involvement only in the Caruana drug trafficking and the harboring of Caruana as a fugitive. But it also argues that all seven activities were reasonably foreseeable to Patriarca and were committed during, and in furtherance of, the RICO conspiracy after Patriarca had joined it as its chief. The government asserted that holding Patriarca responsible for the Limoli or the Berns murder would increase his base offense level to 43, but that this level should then -6- be reduced by three levels because Patriarca's role was minimal or minor under U.S.S.G. 3B1.2. The guideline range for an offense level of 40 and Criminal History Category I is 292-365 months in prison. The government recommended a sentence of 292 months. After numerous evidentiary hearings, the district court announced its decision to sentence Patriarca to 97 months imprisonment. This was an upward departure from the court's calculated guideline range of 63 to 78 months.1 The court concluded that relevant conduct in a RICO case was, as a matter of law, limited to the specific predicate acts charged against the defendant (here, as to Patriarca, the Travel Act violations) and conduct relating to the charged predicates. The court observed that the base offense level for RICO is the greater of 19 or "the offense level applicable to the underlying racketeering activity." U.S.S.G. 2E1.1(a). Because 2E1.1 specifies more than one base offense level, the court determined that 1B1.3 requires the proper base offense to be ascertained by the inclusion of relevant conduct. The core question, in the court's view, was whether "underlying racketeering activity" within the meaning of 2E1.1(a)(2) referred only to the predicate racketeering acts charged against Patriarca ____________________ 1. The district court's extensive sentencing memorandum is published at 807 F. Supp. 165 (D. Mass. 1992). -7- himself, or whether it also embraced other racketeering acts including those of Patriarca's RICO coconspirators committed in the course of the RICO conspiracy. In opting for the former construction, the court relied upon three principles it felt were key: (1) the guidelines are primarily a "charge offense" system; (2) the guidelines are generally intended to duplicate nationwide past practices; and (3) the guidelines are intended to establish a sentencing system which is both administratively workable and fair. Regarding the first, the court noted that none of the seven instances of conduct cited by the government had been charged against Patriarca personally in the indictment. As to the second reason, the court noted that there are no reported pre-guideline RICO cases in which a defendant was sentenced and punished for an uncharged murder. With respect to the third, the court stated that the government's position was administratively unwieldy: weeks or months of evidentiary hearings could be required to decide if a defendant committed the uncharged relevant conduct. Finally, the court was concerned about the procedural fairness of punishing a defendant for an uncharged murder without indictment, trial by jury, and proof beyond a reasonable doubt. The court reasoned that adoption of the government's position would raise serious constitutional -8- questions which the district court's interpretation would avoid. Treating the Limoli or Berns murder as relevant conduct would, the court believed, have the effect of raising the maximum penalty for the RICO violations from 20 years to life imprisonment. The RICO penalty provision, 18 U.S.C. 1963(a), provides for a maximum sentence of 20 years unless "the RICO violation is based on racketeering activity for which the maximum penalty includes life imprisonment," in which case the maximum sentence is life. The guideline penalty for murder, which is a level 43 offense, is life imprisonment. Because the district court, unlike the government, thought a three-level reduction for a minor or minimal role in the offense was unlikely, the court reasoned that if Patriarca was held responsible for the Limoli or Berns murders, his probable sentence would be life imprisonment. In the court's view, therefore, treating the murders as relevant conduct (thereby increasing the guideline range from 63-78 months to life) would violate the due process clause of the constitution by permitting the relevant conduct determination "to be a tail which wags the dog of the substantive offense." McMillan v. Pennsylvania, 477 U.S. 79, ________ ____________ 88 (1986). The government appeals from this determination. B. The Government's Appeal: Relevant Conduct __________________________________________ -9- "The legal determination as to the proper interplay among related guidelines is subject to plenary review." United States v. Schultz, 970 F.2d 960, 962 (1st Cir. 1992), ______________ _______ cert. denied, 113 S. Ct. 1020 (1993). Therefore, we review ____________ de novo the district court's application of the relevant conduct guideline, U.S.S.G. 1B1.3, to the RICO guideline, U.S.S.G. 2E1.1. We conclude that the district court erred when it limited relevant conduct to conduct in furtherance of the predicate acts charged against Patriarca. We hold that relevant conduct in a RICO case includes all conduct reasonably foreseeable to the particular defendant in furtherance of the RICO enterprise to which he belongs. We agree with the government that the language of the relevant conduct section, 1B1.32, and its application ____________________ 2. The relevant conduct guideline, in pertinent part, provides the following: Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following: (1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable -10- to the RICO guideline, 2E1.1, are clear, and hence must be applied. Section 1B1.3 calls for determining the following guideline elements on the basis of relevant conduct as defined: (1) the base offense level, where the guideline specifies more than one base offense level, (2) specific offense characteristics, (3) cross references in Chapter Two, and (4) adjustments in Chapter 3. The RICO guideline, 2E1.13, specifies more than one base offense level, ____________________ acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense . . . . U.S.S.G. 1B1.3(a)(1). The relevant conduct guideline quoted here is the amended version of 1B1.3, which became effective on November 1, 1992, after Patriarca was sentenced. Because the 1992 amendments to 1B1.3 only clarify the previous version of the guideline, we may refer to the later version. See ___ 1B1.11(b)(2) ("the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes"). 3. The RICO guideline provides the following: 2E1.1. Unlawful Conduct Relating to Racketeer 2E1.1. Unlawful Conduct Relating to Racketeer ______________________________________________ Influenced and Corrupt Organizations Influenced and Corrupt Organizations ____________________________________ (a) Base Offense Level (Apply the greater): (1) 19; or 19 (2) the offense level applicable to the underlying racketeering activity. -11- including a cross reference to "the offense level applicable to the underlying racketeering activity." See United States ___ _____________ v. Masters, 978 F.2d 281, 284 (7th Cir. 1992) (reference to _______ "underlying racketeering activity" in 2E1.1(a)(2) is a cross reference), cert. denied, 113 S. Ct. 2333 (1993); ____________ U.S.S.G. 1B1.5, application note 1 (cross references may be general, such as "to the guideline for the 'underlying offense'"). Therefore, 1B1.3 requires the base offense level for 2E1.1 to be determined on the basis of relevant conduct as that term is described in 1B1.3(a)(1). Section 1B1.3 states that "in the case of a jointly undertaken criminal activity," relevant conduct includes "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. 1B1.3(a)(1)(B). This is often referred to as the accomplice attribution element of relevant conduct. "Jointly undertaken criminal activity" is defined in 1B1.3(a)(1)(B) as "a criminal plan, scheme, endeavor, or enterprise __________ undertaken by the defendant in concert with others, whether _______ or not charged as a conspiracy." Id. (emphasis added). _________________________________ ___ Here, the RICO enterprise the Patriarca Family was a "jointly undertaken criminal activity." Thus, Patriarca is potentially liable for the foreseeable criminal acts of ____________________ U.S.S.G. 2E1.1. -12- others in furtherance of that enterprise even though he did not personally participate in them. The application notes expand on the role of relevant conduct in the case of criminal activity undertaken in concert with others. We quote from application note 2 to 1B1.3 at length because of the guidance it provides to courts in determining when a defendant is responsible for the conduct of others under the accomplice attribution element of the relevant conduct guideline: In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both: (i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that criminal activity. Because a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the criminal activity jointly undertaken by the defendant (the "jointly undertaken criminal activity") is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant. In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct ____ and objectives embraced by the defendant's agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that -13- criminal activity, is not relevant conduct under this provision. In determining the scope of the criminal activity that the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct ____ and objectives embraced by the defendant's agreement), the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others. Note that the criminal activity that the defendant agreed to jointly undertake, and the reasonably foreseeable conduct of others in furtherance of that criminal activity, are not necessarily identical. For example, two defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense). U.S.S.G. 1B1.3, application note 2. Application note 2 reflects recognition that the accomplice attribution provision of 1B1.3 operates to hold a defendant responsible for the conduct of others even though "a count may be worded broadly and include the conduct of many participants over a period of time." So as to keep the criminal responsibility within bounds, 1B1.3 requires sentencing courts to ascertain on an individual basis the scope of the criminal activity that the particular defendant agreed jointly to undertake. U.S.S.G. 1B1.3, application note 2. To do this, the court may consider any "explicit -14- agreement or implicit agreement fairly inferred from the conduct of the defendant and others." Id.; see United ___ ___ ______ States v. Innamorati, No. 91-1896, slip op. at 66 (1st Cir. ______ __________ June 17, 1993) (members of drug distribution conspiracy may be held accountable at sentencing for different quantities of narcotics, "depending on the circumstances of each defendant's involvement"); United States v. Collado, 975 F.2d _____________ _______ 985, 992 (3d Cir. 1992) ("the crucial factor in accomplice attribution is the extent of the defendant's involvement in the conspiracy"); Wilkens & Steer, Relevant Conduct: The _______________________ Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L. _________________________________________________ Rev. 495, 511 (1990) ("liability might be justified for those who are at the top directing and controlling the entire operation") (quoting 2 W. LaFave & A. Scott, Substantive Criminal Law 6.8, at 155 (1986)). On remand here, therefore, the district court must determine (1) the scope of the joint criminal activity explicitly or implicitly agreed to by Patriarca jointly with others; (2) whether the criminal acts proffered as relevant conduct were in furtherance of this jointly undertaken criminal activity; and (3) whether the proffered acts were reasonably foreseeable in connection with that criminal activity. These determinations will fix the relevant conduct under 1B1.3 for purposes of calculating the offense level under 2E1.1. Such determinations are, of course, all -15- inherently fact-bound. See, e.g., Innamorati, slip op. at ___ ____ __________ 66. Rather than applying 1B1.3 to 2E1.1 in the straightforward manner discussed above, the district court limited relevant conduct to only those predicate acts that were charged against Patriarca personally namely, the Travel Act violations. In doing so, the district court improperly treated the term "underlying racketeering activity" in 2E1.1(a)(2) as if it "otherwise specified" that relevant conduct should not apply to each "offense of conviction" (including the RICO conspiracy count and the substantive RICO count) and instead should apply only to the predicate Travel Act violations. See U.S.S.G. 1B1.3(a) ___ ("Unless otherwise specified, . . . cross references . . . ___________________________ shall be determined on the basis of . . . all reasonably foreseeable acts . . . that occurred during the commission of the offense of conviction . . . ") (emphasis added). This ______________________ was error. "Subsection (a) [of 1B1.3] establishes a rule of construction by specifying, in the absence of more explicit instructions in the context of a specific guideline, the range of conduct that is relevant to determining the applicable offense level . . . ." U.S.S.G. 1B1.3, Background. The background commentary to 1B1.3 further makes clear that "[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into -16- the determination of the applicable guideline range." Section 2E1.1 specifically the term "underlying racketeering activity" contains no explicit instructions displacing the general rule in 1B1.3 that relevant conduct includes uncharged conduct. In a RICO case, there is no justification for limiting "underlying racketeering activity" just to predicate acts specifically charged against one defendant.4 We, therefore, agree with the government that the term "underlying racketeering activity" in 2E1.1(a)(2) means simply any act, whether or not charged against defendant personally, that qualifies as a RICO predicate act under 18 U.S.C. 1961(1)5 and is otherwise relevant conduct ____________________ 4. Aside from its departure from the relevant conduct guideline, the district court's interpretation could raise other problems. For example, in some circuits the government need not allege specific predicate acts when it charges a defendant with RICO conspiracy. See United States v. ___ ______________ Glecier, 923 F.2d 496, 501 (7th Cir.), cert. denied, 112 S. _______ ____________ Ct. 54 (1991); United States v. Phillips, 874 F.2d 123, 127- _____________ ________ 28 (3d Cir. 1989). A court sentencing a defendant in such a case would be put in a difficult position if forced to apply literally the district court's analysis. Because such cases do not identify and charge the "underlying racketeering activity," a court following the district court's approach might be limited to the base offense level of 19 as specified in 2E1.1(a)(1), even though the real offense conduct underlying the conspiracy is considerably more serious than other level 19 offenses. 5. Section 1961(1) defines "racketeering activity" to include, inter alia, "any act or threat involving murder, __________ kidnaping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year; . . . -17- under 1B1.3. Because the reference to "underlying racketeering activity" is a cross reference, 1B1.3 comes into play and defines "the range of conduct that is relevant . . . ." See U.S.S.G. 1B1.3, Background. It follows that ___ the acts of relevant conduct proffered by the government, all of which are racketeering acts that could have been charged as predicate offenses, come under the heading of "relevant conduct" for sentencing Patriarca on the RICO counts of conviction, provided they otherwise meet the accomplice attribution standards of 1B1.3(a)(1)(B). To avoid this conclusion, Patriarca cites to application notes 1 and 5 to U.S.S.G. 1B1.2. He argues that these application notes show that the term "underlying racketeering activity" should be limited to the specific predicate acts charged against him. We think that neither application note is applicable here. Application note 1 to U.S.S.G. 1B1.2 states the following: This section provides the basic rules for determining the guidelines applicable to the offense conduct under Chapter Two (Offense Conduct). As a general rule, the court is to use the guideline section from Chapter Two most applicable to the offense of conviction. The Statutory Index (Appendix A) provides a listing to assist in this determination. When a ____________________ [and] any act which is indictable under . . . title 18 . . . section 1512 (relating to tampering with a witness, victim, or an informant) . . . ." -18- particular statute proscribes only a single type of criminal conduct, the offense of conviction and the conduct proscribed by the statute will coincide, and there will be only one offense guideline referenced. When a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the court will determine which guideline section applies based upon the nature of the ________________________________ offense conduct charged in the count of _________________________________________ which the defendant was convicted. ________________________________________ (Emphasis ours.) Patriarca relies on the emphasized portion for the proposition that relevant conduct pertaining to composite crimes, like RICO, must be limited to conduct charged in the indictment. It is clear, however, from the full text of the application note, that the note is meant to guide courts in the initial selection of the applicable guideline in Chapter Two, not to limit cross references within a particular guideline. There is no question here that the applicable guideline for RICO convictions is 2E1.1. Thus, application note 1 to 1B1.2 provides no support for Patriarca's argument. Application note 5 to 1B1.2 is equally immaterial to the application of relevant conduct to 2E1.1. Application note 5 relates specifically to 1B1.2(d), which states that: "A conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of -19- conspiracy for each offense that the defendant conspired to commit." Application note 5 in turn provides the following: Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy ____________________________ count if the court, were it sitting as a trier of _____ fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy count would be grouped together under 3D1.2(d) (e.g., a ____ conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because 1B1.3(a)(2) governs consideration of the defendant's conduct. U.S.S.G. 1B1.2, application note 5 (emphasis added). In arguing that 1B1.2(d) and application note 5 limit relevant conduct in composite cases, like RICO cases, to conduct "alleged" in the indictment as predicate acts, _______ Patriarca notes similar language in the application notes to 2E1.1 and the multiple count rules. Application note 1 to 2E1.1 states that "[w]here there is more than one underlying offense, treat each underlying offense as if contained in a separate count of conviction . . . ." Similarly, the introductory commentary to the multiple count rules provides that "[s]ome offenses, e.g., racketeering and ____ conspiracy, may be 'composite' in that they involve a pattern of conduct or scheme involving multiple underlying offenses. The rules in this Part are to be used to determine the offense level for such composite offenses from the offense -20- level for the underlying offenses." Application note 8 to 3D1.2 refers specifically back to 1B1.2(d): "A defendant may be convicted of conspiring to commit several substantive offenses and also of committing one or more of the substantive offenses. In such cases, treat the conspiracy count as if it were several counts, each charging conspiracy to commit one of the substantive offenses. See 1B1.2(d) ______________ and accompanying commentary." U.S.S.G. 3D1.2, application ___________________________ note 8 (emphasis added). On the basis of this commentary, Patriarca contends that the only way to apply the multiple count section of the guidelines to a RICO conviction is to use the directions for the more commonly applied conspiracy, and hence the rule of 1B1.2(d).6 We disagree. First, the definition of "offense" ____________________ 6. The training staff at the Sentencing Commission apparently agrees. In the latest issue of the Sentencing Commission's Most Frequently Asked Questions About the ______________________________________________ Sentencing Guidelines, Vol. VI, Dec. 1, 1992, Question 30 ______________________ asks: "The defendant was convicted of RICO (18 U.S.C. 1962). How is the alternative base offense level at 2E1.1(a)(2) determined?" The answer provides the following: Application note 1 to 2E1.1 instructs that where there is more than one underlying offense (i.e., ____ predicate act), each underlying offense should be treated as if contained in a separate count of conviction for the purposes of subsection (a)(2). (See 1B1.2(d) and Application Note 5.) Each of ___ the underlying offenses, whether or not charged in substantive counts of conviction, are treated as if they were substantive counts of conviction, or "pseudo counts." Id. The training staff's informational booklet states that ___ "[t]he information does not necessarily represent the -21- contained in the application notes to U.S.S.G. 1B1.1 is not limited to charged offenses. Instead, "offense" is defined to mean "the offense of conviction and all relevant conduct _________________________ under 1B1.3 (Relevant Conduct) unless a different meaning _________________________________ is specified or is otherwise clear from the context." U.S.S.G. 1B1.1, application note 1(l) (emphasis added). As stated previously, 2E1.1 does not specify a different meaning; therefore, there is no reason to interpret "underlying offense" to exclude uncharged conduct. Furthermore, although applying 1B1.2(d) to RICO convictions has some superficial appeal, there would be insurmountable obstacles to its practical application. First, by its own terms, 1B1.2(d) is limited to counts "charging a conspiracy." Therefore, it is difficult to see _____________________ how 1B1.2(d) could apply to a substantive RICO violation (as opposed to a RICO conspiracy). Even overlooking this language, it would be impossible under application note 5 for a court to determine whether it "would convict the defendant of conspiring to commit" an underlying offense in situations __________ where the defendant is charged with a substantive RICO violation and the underlying offense is not a conspiracy. ____________________ official position of the Commission, should not be considered definitive, and is not binding upon the Commission, the court, or the parties in any case." Because 1B1.2(d), by its own terms, is not applicable to RICO convictions, we do not follow the training staff's suggestion. -22- Thus, 1B1.2(d) is inapplicable to nonconspiracy offenses such as a substantive RICO violation. There are problems with applying 1B1.2(d) to RICO conspiracies as well. It seems clear from the plain text of 1B1.2(d), the application notes, and the official commentary7 that 1B1.2(d) was enacted to deal with multiple object conspiracies charged in a single count. A RICO conspiracy, however, is considered a single object ____________________ 7. Official comments made by the Sentencing Commission at the time that it enacted 1B1.2(d) clarify the purpose of Application note 5: [Application note 5] is provided to address cases in which the jury's verdict does not specify how many or which offenses were the object of the conspiracy of which the defendant was convicted. Compare U.S. v. Johnson, 713 F.2d 633, 645-46 (11th _______ ____ _______ Cir. 1983) (conviction stands if there is sufficient proof with respect to any one of the objectives), with U.S. v. Tarnopol, 561 F.2d 466 ____ ________ (3d Cir. 1977) (failure of proof with respect to any one of the objectives renders the conspiracy conviction invalid). In order to maintain consistency with other 1B1.2(a) determinations, this decision should be governed by a reasonable doubt standard. A higher standard of proof should govern the creation of what is, in effect, a new count of conviction for the purposes of Chapter Three, Part D (Multiple Counts). Because the guidelines do not explicitly establish standards of proof, the proposed new application note calls upon the court to determine which offense(s) was the object of the conspiracy as if it were "sitting as a trier of fact." The foregoing determination is not required, however, in the case of offenses that are grouped together under 3D1.2(d) (e.g., fraud ____ and theft) because 1B1.3(a)(2) governs consideration of the defendant's conduct. U.S.S.G. App. C., para. 75, p.29 (Nov. 1, 1989). -23- conspiracy with that object being the violation of RICO. United States v. Ashman, 979 F.2d 469, 485 (7th Cir. 1992) ______________ ______ ("The goal of a RICO conspiracy is a violation of RICO.") (quoting United States v. Neapolitan, 791 F.2d 489, 496 (7th _____________ __________ Cir.), cert. denied, 479 U.S. 940 (1986)), petition for cert. ____________ __________________ filed sub nom. Barcal v. United States, 61 U.S.L.W. 3857 _______________ ______ ______________ (U.S. April 6, 1993) (No. 92-1804). In enacting RICO, Congress intended that "'a series of agreements that under pre-RICO law would constitute multiple conspiracies could under RICO be tried as a single enterprise conspiracy' if the defendants have agreed to commit a substantive RICO offense."8 United States v. Riccobene, 709 F.2d 214, 224-25 _____________ _________ (3d Cir.) (quoting United States v. Sutherland, 656 F.2d ______________ __________ 1181, 1192 (5th Cir. 1981), cert. denied, 455 U.S. 949 (1982) ____________ (internal citation omitted)), cert. denied sub nom. __________________________ Ciancaglini v. United States, 464 U.S. 849 (1983). ___________ _____________ Application notes 1 and 5 to 1B1.2 are not, therefore, material to determining whether relevant conduct ____________________ 8. Rather than merely requiring a defendant to agree to commit a substantive RICO offense, this circuit follows the minority rule, which requires that a defendant agreed to commit, or in fact committed, two or more specified predicate crimes as part of the defendant's participation in the affairs of the enterprise in order to convict the defendant for a RICO conspiracy. United States v. Boylan, 898 F.2d _____________ ______ 230, 241 (1st Cir.), cert. denied, 498 U.S. 849 (1990); ____________ United States v. Winter, 663 F.2d 1120, 1136 (1st Cir. 1981), _____________ ______ cert. denied, 460 U.S. 1011 (1983). This minority rule, _____________ however, does not affect the general premise that a RICO conspiracy is a single object conspiracy. -24- must be limited to predicate acts charged against a defendant. Instead, 1B1.3 determines the range of conduct that is relevant to cross references such as the term "underlying racketeering activity" in 2E1.1(a)(2), and the background commentary to 1B1.3 makes clear that "[c]onduct that is not formally charged . . . may enter into the determination of the applicable guideline sentencing range." Because the application of 1B1.3 to 2E1.1 is straightforward and unambiguous, the district court erred in resorting to the general principles underlying the guidelines and the general rule of construction that "courts should construe statutes to avoid decision as to their constitutionality." See, e.g., United States v. Monsanto, ___ ____ _____________ ________ 491 U.S. 600, 611 (1989). "[C]ourts should strive to apply the guidelines as written, giving full force and effect to the Sentencing Commission's interpretive commentary and application notes." United States v. Zapata, No. 93-1116, ______________ ______ slip op. at 4 (1st Cir. July 19, 1993); accord Stinson v. ______ _______ United States, 113 S. Ct. 1913, 1915 (1993); United States v. _____________ _____________ Brewster, No. 93-1046, slip op. at 7 (1st Cir. July 28, ________ 1993). Absent specific provision in 2E1.1 that "underlying racketeering activity" includes only charged predicate acts, we see no principled basis to read such a limitation into the provision. -25- Even were the application of relevant conduct to 2E1.1 less clear than it is, we would have trouble accepting the three principles cited by the district court as the rationale for limiting relevant conduct to the predicate acts actually charged against a defendant. The district court felt that "the Sentencing Guidelines are closer to a 'charge offense' system than a 'real offense' system of punishment." Patriarca, 807 F. Supp. at 190; U.S.S.G. Ch. 1, Pt. A, 4(a), _________ p. 5. In the court's view, the reason the government did not charge the conduct at issue in this appeal as predicate acts in the indictment is because the government had insufficient evidence to sustain a conviction for this conduct. 807 F. Supp. at 191. Because conduct "which the prosecutor can prove in court" is supposed to "impose[] a natural limit upon the prosecutor's ability to increase a defendant's sentence," U.S.S.G. Ch.1, Pt. A, 4(a), p.5, the court thought that it would be improper for a sentencing court to increase a defendant's sentence on the basis of uncharged predicate acts. Similar arguments have been rejected by this court and virtually every other circuit court to have addressed the issue. See, e.g., United States v. Mocciola, 891 F.2d 13, ___ ____ ______________ ________ 16-17 (1st Cir. 1989); United States v. Galloway, 976 F.2d ______________ ________ 414, 424 n.6 (8th Cir. 1992) (collecting cases), cert. _____ denied, 113 S. Ct. 1420 (1993). While the district court is ______ -26- correct that "for the most part, the court will determine the applicable guideline by looking to the charge of which the _____________________ offender was convicted," United States v. Blanco, 888 F.2d _____________ ______ 907, 910 (1st Cir. 1989), real offense principles enter into the punishment prescribed in the guidelines through the relevant conduct guideline, 1B1.3. Breyer, The Federal ___________ Sentencing Guidelines and the Key Compromises Upon Which They _____________________________________________________________ Rest, 17 Hofstra L. Rev. 1, 11-12 (1988). Relevant conduct ____ increases a defendant's sentence, sometimes very significantly, despite the fact that it was not charged in an indictment, e.g., Blanco, 888 F.2d at 910, and even despite ____ ______ the fact that a jury may have acquitted the defendant for that precise conduct. E.g., Mocciola, 891 F.2d at 16-17; ____ ________ United States v. Rumney, 867 F.2d 714, 719 (1st Cir.) ______________ ______ ("traditional sentencing factors need not be pleaded and proved at trial") (quoting United States v. Brewer, 853 F.2d _____________ ______ 1319, 1326 (6th Cir.), cert. denied, 488 U.S. 946 (1988)), ____________ cert. denied, 491 U.S. 908 (1989). This is because _____________ sentencing factors, including the applicability of relevant conduct, need only be proven by a preponderance of the evidence, not beyond a reasonable doubt. Mocciola, 891 F.2d ________ at 16-17; Galloway, 976 F.2d at 424 n.6. As noted below, in ________ pre-guideline cases courts likewise took into account untried criminal conduct when exercising sentencing discretion. The fact that the government has not charged and proven beyond a -27- reasonable doubt the conduct now asserted as relevant conduct does not prevent the increase in sentence resulting from the relevant conduct guideline. We see no special reason to deviate from this principle when dealing with a RICO conviction. Nor are we as convinced as the dis |