1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-1995

USA v Marrone & Paris

Precedential or Non-Precedential:

Docket 93-5738

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Recommended Citation

"USA v Marrone & Paris" (1995). 1995 Decisions. Paper 60.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/60
 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

No. 93-5738 

 

UNITED STATES OF AMERICA 

v. 

JOHN MARRONE, 

a/k/a JOHNNY MOOSE 

JOHN MARRONE, 

 Appellant

 

No. 93-5740 

 

UNITED STATES OF AMERICA 

v. 

MICHAEL PARIS, 

 Appellant

 

 On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Criminal Nos. 92-cr-00171-6, 92-cr-00171-9) 

 

Argued: January 24, 1995 

Before: SLOVITER, Chief Judge, 

LEWIS and WEIS, Circuit Judges

(Filed February 23, 1995) 

 

John C. Whipple (Argued) 

Whipple, Ross & Hirsch 

Parsippany, N.J. 07054 

 

 Attorney for Appellant John Marrone 

Richard F. X. Regan (Argued) 

Hayden, Perle & Silber 

Weehawken, N.J. 07087 

 Attorney for Appellant Michael Paris 

Faith S. Hochberg 

United States Attorney 

Leslie F. Schwartz (Argued) 

Victor Ashrafi 

Newark, N.J. 07102 

 Attorneys for Appellee 

 

 OPINION OF THE COURT 

 

SLOVITER, Chief Judge. 

 John Marrone and Michael Paris appeal from sentences 

imposed following their convictions on RICO and gambling 

offenses. They were indicted, tried, and convicted with six 

other defendants, all of whom were associated with the Genovese 

Crime Family (GCF). Though all defendants appealed, this opinion 

addresses only certain sentencing issues raised by Marrone and 

Paris.1 Specifically, Paris argues that a RICO predicate act for 

 

1. Finding no merit in any of the contentions raised by the 

other defendants, we have today affirmed the convictions and 

sentences of all the other defendants. 
which he was previously convicted should not have been used as 

the basis for added criminal history points. In Marrone's case, 

the predicate act was not used for criminal history points, but 

to determine his status as a career offender. He contends this 

was improper. We will discuss their contentions separately but 

in one opinion because the legal issues overlap. 

 We have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742. To the extent that defendants challenge the 

district court's legal interpretation of the Sentencing 

Guidelines, we exercise plenary review. United States v. 

Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990). 

I. 

 PARIS - CRIMINAL HISTORY POINTS

 The indictment charged that Paris was an "associate" of 

the GCF, subordinate to defendant Salvatore Lombardi, a 

"caporegime" in the GCF. After a jury trial, Paris was convicted 

on several counts, including conspiracy to conduct and 

participate in the conduct of the GCF's affairs through a pattern 

of racketeering activity, in violation of 18 U.S.C. § 1962(d) 

(Count 1); conducting and participating in the conduct of the 

GCF's affairs through a pattern of racketeering activity, in 

violation of 18 U.S.C. § 1962(c) (Count 2); and various gambling 

offenses not at issue in this appeal. 

 Paris had been previously convicted for a predicate act 

charged in Count 2. Specifically, the indictment charged Paris 

with an attempted bribery to which he pled guilty in New York 

state court on February 26, 1992 and for which he was sentenced 
to one to three years imprisonment. In convicting Paris on Count 

2, the jury found this predicate act proven by special 

interrogatory. 

 The district court did not factor the attempted bribery 

into Paris' base offense level. Instead, the court assessed 

three criminal history points against Paris under U.S.S.G. § 

4A1.1(a), which placed him in criminal history category II. The 

court then sentenced Paris to 57 months imprisonment running 

consecutively to his state bribery sentence, followed by three 

years supervised release, plus a fine of $7500 and a special 

assessment of $250. 

 In sentencing a RICO defendant, the district court must 

apply "the offense level applicable to the underlying 

racketeering activity" or an offense level of 19, whichever is 

greater. U.S.S.G. § 2E1.1. The district court found that Paris' 

underlying conduct, apart from the attempted bribery, resulted in 

an offense level of 17, and therefore assigned him a base offense 

level of 19. The court also assessed a three level increase for 

Paris' managerial and supervisory role, giving him a total 

offense level of 22. 

 In arriving at a defendant's criminal history, a 

district court must add three criminal history points "for each 

prior sentence of imprisonment" exceeding 13 months. U.S.S.G. § 

4A1.1(a). The Guidelines define "prior sentence" as "any 

sentence previously imposed upon adjudication of guilt . . . for 

conduct not part of the instant offense." Id. § 4A1.2(a)(1) 

(emphasis added). The commentary to section 4A1.2 explains that 
a prior sentence is one "imposed prior to sentencing on the 

instant offense . . . . A sentence imposed after the defendant's 

commencement of the instant offense, but prior to sentencing on 

the instant offense, is a prior sentence if it was for conduct 

other than conduct that was part of the instant offense." Id. § 

4A1.2, comment. (n.1). 

 Paris argues that because the bribery was included as a 

predicate act, it was part of the "instant offense" and therefore 

should not have been the basis of criminal history points.2 The 

district court was not persuaded that the bribery conduct should 

be encompassed for sentencing purposes into the "instant offense" 

and instead treated it as a prior sentence. It relied on 

commentary to section 2E1.1 (Racketeering) which discusses when 

conduct is to be assigned to criminal history rather than to the 

"instant offense." Under that commentary, conduct charged as 

part of the "pattern of racketeering activity" that was the 

subject of an earlier conviction and sentence should be treated 

as a "prior sentence" under section 4A1.2(a)(1) (referring to 

instructions for Computing Criminal History) and not as part of 

the "instant offense" if the defendant was convicted for that 

conduct before the "last overt act of the instant offense." See

U.S.S.G. § 2E1.1, comment. (n.4) (hereafter Application Note 4).3

 

2. Paris raises but does not fully develop this argument in his 

brief. However, he joins in the arguments of his co-appellant 

Marrone, who does develop the issue in the context of challenging 

his classification as a career offender. 

3. The full text of Application Note 4 provides: 
 We are bound by "commentary in the Guidelines Manual 

that interprets or explains a guideline . . . unless it violates 

the Constitution or a federal statute, or is inconsistent with, 

or a plainly erroneous reading of, that guideline." Stinson v. 

United States, 113 S. Ct. 1913, 1915 (1993). We must therefore 

determine whether Application Note 4, under which certain 

sentences imposed for conduct underlying a RICO conviction are 

treated as "prior sentences" for criminal history purposes, is 

inconsistent with section 4A1.2(a)(1). 

 In a series of cases, albeit in another context, we 

have noted that Congress did not intend "RICO to be a substitute 

for the predicate offense," but instead "intended to create 

separate offenses for the predicate acts and the substantive RICO 

charge." United States v. Esposito, 912 F.2d 60, 63-64 (3d Cir. 

1990), cert. dismissed, 498 U.S. 1075 (1991); see also United 

States v. Grayson, 795 F.2d 278, 283 (3d Cir. 1986) ("Congress, 

in enacting RICO, sought to allow the separate prosecution and 

(..continued) 

 Certain conduct may be charged in the count of 

conviction as part of a "pattern of racketeering 

activity" even though the defendant has previously been 

sentenced for that conduct. Where such previously 

imposed sentence resulted from a conviction prior to 

the last overt act of the instant offense, treat as a 

prior sentence under § 4A1.2(a)(1) and not as part of 

the instant offense. This treatment is designed to 

produce a result consistent with the distinction 

between the instant offense and criminal history found 

throughout the guidelines. If this treatment produces 

an anomalous result in a particular case, a guideline 

departure may be warranted. 

U.S.S.G. § 2E1.1, comment. (n.4). 
punishment of predicate offenses and a subsequent RICO 

offense."), cert. denied, 479 U.S. 1054, 481 U.S. 1018 (1987); 

United States v. Riccobene, 709 F.2d 214, 232 (3d Cir.) ("The 

predicate offenses . . . are not themselves the RICO violation[;] 

they are merely one element of the crime. [RICO] does not 

prohibit the commission of the individual racketeering acts. 

Rather, it bans the operation of an on-going enterprise by means 

of those acts."), cert. denied, 464 U.S. 849 (1983). 

 Similarly, for criminal history purposes, the 

Sentencing Commission has clarified that a RICO violation should 

be considered separate from any previously convicted predicate 

act. See U.S.S.G. App.C, amend. 142 (Application Note 4 added 

"to clarify the treatment of certain conduct for which the 

defendant previously has been sentenced as either part of the 

instant offense or prior criminal record"). Although a predicate 

act constitutes an element of a RICO violation, the previously 

convicted RICO offender is in effect a repeat offender who breaks 

the law once by committing a predicate act and again by engaging 

in a pattern of racketeering activity. The Sentencing Commission 

has declared that a repeat offender "is more culpable than a 

first offender and thus deserving of greater punishment," and 

that "[r]epeated criminal behavior is an indicator of a limited 

likelihood of successful rehabilitation." U.S.S.G. Ch.4, Part A, 

intro. comment. 

 The Commission accordingly provided that where a 

defendant has previously been convicted for a RICO predicate act, 

that conviction should be factored into the defendant's criminal 
history score rather than the base offense level. Cf. U.S.S.G. § 

2D1.5, comment. (n.3) (if a conviction for engaging in a 

continuing criminal enterprise in violation of 21 U.S.C. § 848 is 

supported by conduct for which the defendant has previously been 

sentenced, "[a] sentence resulting from a conviction sustained 

prior to the last overt act of the instant offense is to be 

considered a prior sentence under § 4A1.2(a)(1) and not part of 

the instant offense"). 

 Apparently no appellate court has addressed this issue 

in an opinion in the RICO context. However, in United States v. 

Crosby, 913 F.2d 313, 315 (6th Cir. 1990), the court sustained 

the Commission's approach in the context of the guideline on 

continuing criminal enterprise, saying: "If a conviction occurs 

while the criminal enterprise is continuing, a court should 

include the sentence resulting from that conviction in the 

criminal history for calculating the sentence for involvement in 

a continuing criminal enterprise. . . . The sentencing guidelines 

reflect the unique nature of a continuing criminal enterprise by 

including prior sentences in the defendant's criminal history, 

even if the prior sentences are for crimes committed in 

furtherance of the continuing criminal enterprise." Cf. United 

States v. Minicone, 960 F.2d 1099, 1111 (2d Cir.) (government 

unsuccessful in arguing that district court erred in assessing 

prior conviction of RICO defendant only in calculating criminal 

history and not in calculating base offense level; "district 

court reasonably construed Note 4 to mean that the conduct 

underlying the previously imposed sentence should not be used in 
calculating the base level for the instant [RICO] offense"), 

cert. denied, 112 S. Ct. 1511, 113 S. Ct. 199 (1992). 

 The Commission's treatment of the prior conviction for 

a RICO predicate act, reflected in its commentary in Application 

Note 4, avoids the anomaly of treating a RICO defendant with a 

previous conviction for conduct that is part of a continuing 

pattern of racketeering activity as a first offender with a 

criminal history category of I.4 Admittedly, the Sentencing 

Commission could have amended the guidelines to achieve the same 

result. It was, however, equally free to amend the commentary 

"if the guideline which the commentary interprets will bear the 

construction." Stinson, 113 S. Ct. at 1919. 

 Application Note 4 constitutes an interpretation of the 

RICO guideline that "may not be compelled by the guideline text" 

but is nonetheless "not plainly erroneous or inconsistent" with 

section 4A1.2(a)(1). Stinson, 113 S. Ct. at 1920 (quotation and 

citation omitted). We are therefore bound to accept Application 

Note 4 as written.5

 

4. To be sure, absent Application Note 4 the previously 

convicted conduct would be factored into the RICO defendant's 

base offense level. However, here as in most cases, the increase 

in criminal history score resulting from Application Note 4 

produces a higher guideline range than would the incorporation of 

the previously sentenced conduct into the base offense level. 

5. Effective November 1, 1993, the Sentencing Commission amended 

the commentary to section 4A1.2 to state, "Conduct that is part 

of the instant offense means conduct that is relevant conduct to 

the instant offense under the provisions of § 1B1.3 (Relevant 

Conduct)." U.S.S.G. § 4A1.2, comment. (n.1) (Nov. 1993). 

Marrone argues that this brings section 4A1.2 into conflict with 

Application Note 4. We do not so read it. Instead, Application 

Note 4 represents the Commission's permissible construction of a 
 Neither United States v. Hallman, 23 F.3d 821 (3d Cir.) 

cert. denied, 115 S. Ct. 216 (1994), nor United States v. Kenyon, 

7 F.3d 783 (8th Cir. 1993), compel a contrary result. In 

Hallman, we held that a state conviction for forgery could not 

count as a prior sentence under section 4A1.2(a)(1) because it 

was "part of a common scheme and plan" including the instant 

offense of possession of stolen mail, where all of the stolen 

mail was in the form of checks or credit cards and the forged 

check underlying the state conviction was from a sequence of 

checks found within the stolen mail. See Hallman, 23 F.3d at 

826. Because Hallman was not a RICO defendant who participated 

in a pattern of racketeering activity apart from any single 

predicate act, reducing his criminal history score neither 

implicated Application Note 4 nor contravened the policy of the 

criminal history guideline. 

 In Kenyon, on which Paris and Marrone both rely, the 

defendant pled guilty in state court to possession of cocaine and 

in federal court to conspiracy to possess cocaine with intent to 

distribute. The court held that it was error to count the state 

conviction toward Kenyon's criminal history score because the 

conduct underlying the state conviction "comprise[d] part of the 

conduct" and was "part of the same criminal scheme" for which he 

was convicted in federal court. Kenyon, 7 F.3d at 787. Like 

(..continued) 

defendant's criminal history in the unique context of a RICO 

offense. 
Hallman, however, Kenyon was not charged with participating in a 

pattern of racketeering activity as defined in RICO. 

 Paris argues in the alternative that Application Note 4 

does not apply by its own terms because his bribery sentence did 

not result "from a conviction prior to the last overt act of the 

instant offense." U.S.S.G. § 2E1.1, comment. (n.4). He notes 

that he pled guilty to the bribery in state court on February 26, 

1992, which was after the date of the last overt act charged in 

the indictment (February 17, 1992). See App. at 182-83. 

However, Application Note 4 refers to the last overt act of the 

offense, not the last act charged in the indictment, and the 

district court found that the last overt act of the offense, 

Marrone's purchase of a silencer from an undercover officer, 

occurred on March 18, 1992, after Paris' guilty plea. His 

bribery conviction thus properly falls under Application Note 4,6

and the district court did not err in treating it as part of 

criminal history.7

 

6. In the district court and at oral argument in this court, 

Paris argued that Marrone's purchase of a silencer was not 

chargeable to him because it was not reasonably foreseeable. He 

did not make this argument in his brief and therefore may have 

waived it. In any event, Application Note 4 does not refer to 

the last act chargeable to the defendant, and Paris has cited no 

authority to support such a requirement. 

7. We find no merit in Paris' other arguments that (1) the 

judgments of conviction as to Count 1 must be vacated and 

reversed because the government failed to adduce sufficient 

evidence connecting him to the RICO conspiracy and to the RICO 

enterprise; (2) the district court erred in assessing him a 

three-level upward adjustment for "aggravating role" under 

U.S.S.G. § 3B1.1(b); (3) the district court erred in refusing to 

allow a two-level downward adjustment for acceptance of 

responsibility under U.S.S.G. § 3E1.1; and (4) the district court 
II. 

 MARRONE-CAREER OFFENDER STATUS

 Marrone also argues that the district court erred in 

its treatment of his prior sentence, in his case for arson, which 

he contends was part of the "instant offense." Unlike Paris, 

whose prior sentence was used as the basis to add criminal 

history points, the arson sentence was used in Marrone's case to 

classify him as a career offender. 

 The indictment charged that Marrone was a "made member" 

of the GCF, subordinate to Salvatore Lombardi. After the jury 

trial, Marrone was convicted on several counts, including 

conspiracy to conduct and participate in the conduct of the GCF's 

affairs through a pattern of racketeering activity, in violation 

of 18 U.S.C. § 1962(d) (Count 1); conducting and participating in 

the conduct of the GCF's affairs through a pattern of 

racketeering activity, in violation of 18 U.S.C. § 1962(c) (Count 

2); and various gambling offenses not at issue in this appeal. 

 One of the predicate acts charged in Count 2 against 

Marrone was a 1982 arson for which he was sentenced in a New 

Jersey state court in 19858. In convicting Marrone on Count 2, 

the jury found this predicate act proven by special 

interrogatory. 

(..continued) 

erred in declining to reduce his guideline sentence for time 

spent in jail prior to the commencement of his sentence under 

U.S.S.G. § 5G1.3(b) or by way of a downward departure pursuant to 

U.S.S.G. § 2E1.1, comment. (n.4), and U.S.S.G. § 5K2.0, p.s. 

8. The presentence report does not state when Marrone was 

convicted for the arson, though it occurred after the 

commencement of the conduct charged as RICO in the indictment. 
 As in the case of Paris, the district court did not 

factor the arson into Marrone's base offense level. Instead, the 

court relied on his arson conviction, as well as an unrelated 

earlier conviction for using extortionate means to collect an 

extension of credit in violation of 18 U.S.C. § 894, to classify 

him as a career offender under U.S.S.G. § 4B1.1 (Nov. 1992). The 

district court then sentenced Marrone to a total of 293 months 

imprisonment, followed by three years supervised release, and a 

special assessment of $350. 

 A defendant is a career offender if (1) the defendant 

was at least eighteen years old at the time of the instant 

offense; (2) the instant offense is a felony that is a crime of 

violence or a controlled substance offense; and (3) the defendant 

has "at least two prior felony convictions" of a crime of 

violence or a controlled substance offense. U.S.S.G. § 4B1.1.9 

To have two prior felony convictions, the defendant must have 

"committed the instant offense subsequent to sustaining" the two 

convictions, and the sentences for the two convictions must be 

"counted separately under the provisions of § 4A1.1(a), (b), or 

(c)." Id. § 4B1.2(3). 

 

9. A career offender's offense level is the greater of the 

offense level applicable to the underlying conduct or the 

appropriate offense level specified in section 4B1.1. A career 

offender automatically receives a criminal history category of 

VI. U.S.S.G. § 4B1.1. Here, the district court assigned Marrone 

a total offense level of 33, two levels lower than that 

calculated in the presentence report but still greater than the 

relevant level under § 4B1.1. 
 Marrone argues first that his designation as a career 

offender was improper because the 1982 arson cannot be used as a 

"prior conviction" under section 4B1.1, which he notes is to be 

governed by section 4A1.2(a)(1). In effect, he would have us 

disregard Application Note 4 to section 2E1.1, the racketeering 

guideline. In our discussion of Paris' sentencing we have 

already rejected the argument made by Marrone that Application 

Note 4 is inconsistent with section 4A1.2(a)(1). We have 

concluded instead that Application Note 4 is a permissible 

interpretation of the guidelines applicable in the specific 

context of RICO. Therefore, we agree with the government that a 

prior conviction for a predicate act can increase a RICO 

defendant's criminal history score. 

 Marrone's argument seems to be predicated on the 

assumption that the "two prior felony convictions" referred to in 

U.S.S.G. § 4B1.1 which are necessary before the defendant is 

designated as a career offender must be separate from the 

"instant offense." That assumption is mistaken. Although 

section 4B1.2 defines "two prior felony convictions" under the 

career offender guideline to mean that the sentences of at least 

two such convictions are "counted separately," it does not 

mandate that these convictions must have resulted from "conduct 

not part of the instant offense." Instead, "the sentences that 

must be separate in this sense are the sentences imposed for the 

prior convictions . . . . The two prior convictions must be 

separate from each other," not necessarily from the instant 

offense. United States v. Belton, 890 F.2d 9, 10-11 (7th Cir. 
1989) (permitting state conviction that "punished conduct . . . 

part of [the instant] offense" to serve as predicate felony for 

career offender guideline). Here, Marrone's two prior 

convictions were separate from each other and he does not contend 

otherwise. 

 Moreover, as the Belton court recognized, classifying a 

defendant as a career offender because of conduct related to the 

offense of conviction is consistent with the policy of the career 

offender guideline. See Belton, 890 F.2d at 10 ("Continuing to 

participate in a drug conspiracy after having been convicted of a 

drug offense manifests a propensity for recidivism as plainly as 

if the conspiracy had been started from scratch."). A career 

offender is "incorrigible, undeterrable, recidivating, [and] 

unresponsive to the 'specific deterrence' of having been 

previously convicted," id., an accurate description of Marrone, 

who continued to participate in racketeering activity despite his 

convictions for extortion and arson. 

 Marrone next argues that his designation as a career 

offender was improper because the "instant offense" was not 

committed subsequent to his arson conviction as required by 

section 4B1.2(3) if it is to be used for career offender 

purposes. However, his RICO conduct, i.e. the "instant offense," 

continued well past his arson conviction, and "continued 

participation in a conspiracy [or RICO offense] after a felony 

conviction renders that conviction a prior felony conviction" for 

purposes of career offender sentencing. United States v. Elwell, 

984 F.2d 1289, 1298 (1st Cir.), cert. denied, 113 S. Ct. 2429 
(1993). See also Belton, 890 F.2d at 10 ("[T]he 'subsequent' 

offense need not be entirely subsequent to preserve the relation 

between the [career offender] guideline and its animating policy 

of punishing the recidivist more severely."). 

 We find no error in the district court's designation of 

Marrone as a career offender.10

III. 

 CONCLUSION

 For the foregoing reasons, we will affirm the judgments 

of conviction and sentences of Michael Paris and John Marrone. 

 

10. We find no merit in Marrone's additional arguments that 

(1) the district court should have ordered a detailed bill of 

particulars due to the lack of specificity of the pleading of the 

Count 1 racketeering acts, and (2) there was insufficient 

evidence to support the jury's finding of proven on racketeering 

act 6(a) of Count 1 and racketeering act 4 of Count 2.