NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-4579

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UNITED STATES OF AMERICA

v.

JOSEPH BIGICA,

 Appellant 

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-12-cr-00318-001)

District Judge: Honorable Faith S. Hochberg

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Submitted Under Third Circuit LAR 34.1(a)

October 29, 2013

Before: FISHER, JORDAN and SLOVITER, Circuit Judges.

(Filed: October 31, 2013)

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OPINION

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JORDAN, Circuit Judge.

Joseph Bigica appeals the sentence imposed on him by the United States District 

Court for the District of New Jersey. He contends that the District Court erred in 

calculating his sentencing range by not considering his two offenses to be of the same 

general type and by not holding an evidentiary hearing before ruling on his request for an
2

offense-level reduction for acceptance of responsibility. We discern no error in the 

sentencing and will affirm.

I. Background1

On May 9, 2012, Bigica pled guilty to a two-count Information charging him with 

corruptly interfering with the due administration of the internal revenue laws, in violation 

of 26 U.S.C. § 7212(a), and conspiring to violate the Federal Election Campaign Act 

through the use of straw contributors to a federal election campaign, in violation of 18 

U.S.C. § 371. Those charges were the result of two things: first, Bigica’s failure to pay 

any of the approximately $1,488,020 in federal taxes he owed for 1999 through 2006, 

despite his having earned $5,801,888 in gross income during that time, and, second, his 

contribution from 2006 to 2009 through straw donors of $98,600 to various federal 

election campaigns. 

In Bigica’s plea agreement, the parties noted their positions on certain issues 

related to the calculations necessary under the United States Sentencing Guidelines

(“U.S.S.G.”). In particular, they stipulated to a total offense level of 22 for his tax 

offense and to a total offense level of 22 for his illegal campaign contribution offense. 

The government did not believe that the counts should be grouped for sentencing 

purposes, but Bigica reserved the right to argue that they should be grouped. The parties 

also stipulated that Bigica had demonstrated acceptance of responsibility and he thus 

qualified for a 3-level reduction in his offense level calculation. 

 

1 Because we write solely for the parties, we set forth only the facts necessary to 

resolve this appeal.
3

The United States Probation Office prepared a presentence investigation report 

(“PSR”) which accepted Bigica’s offense level for the tax evasion count as 22 and his 

offense level for the illegal campaign contributions count as 22. It added a 2-level 

enhancement because the counts were not grouped, but it “marginally afforded” Bigica a 

3-level offense-level reduction for acceptance of responsibility. (PSR ¶ 80.) That

resulted in an adjusted offense level of 21. With Bigica’s Criminal History Category of I, 

the PSR provided his final Guidelines range as 37 to 46 months’ imprisonment.

In his written response, Bigica did not question the calculation, but did object to 

the analysis of his financial ability to pay restitution. Specifically, the PSR explained that

[w]hile the defendant unquestionably suffers from various 

financial shortcomings, we submit he has not proven an 

inability to pay a fine. Bigica failed to submit complete 

financial statements, and the documentation and information

that was otherwise submitted is, in parts, contradictory if not 

altogether absent. The defendant continues to flagrantly 

disregard his legal responsibilities and clearly lives way 

above his financial means, even in light of the instant criminal 

prosecution and inherent sanctions the Court may impose. 

While a cursory review of the financial statement submitted 

by the defendant in August 2012 would make him appear 

nearly destitute, any assets are directly attributable to the 

defendant’s income as Mrs. Bigica is not employed outside 

the home. The expenditures and liabilities proffered by the 

defendant consist largely of unnecessary living expenses, 

those which exceed the income Bigica reports, or are debts 

resulting from the defendant’s criminal conduct.

(Id. ¶ 232.) The PSR summarized Bigica’s objection, stating that he contended he made a 

“good faith effort” to provide the requested documentation, but explained that his 

financial situation was “complex.” (Id. at 63.) Bigica also claimed that he failed to 

provide complete financial statements because he was “somewhat disorganized” with 
4

respect to his financial documentation. (Id.) He also claimed that he was attempting to 

pay “pre-existing financial responsibilities,” which apparently prevented him from 

beginning to pay his back-taxes. (Id.) The day before sentencing, the District Court 

ordered Bigica to submit his 2011 tax return and other required financial information to 

the Probation Office. He complied with that order. 

At sentencing, Bigica argued that his two counts should have been grouped 

pursuant to U.S.S.G. § 3D1.2(d),2 which would have resulted in an offense level of 22 

before any acceptance of responsibility reduction was granted. The District Court 

disagreed and concluded that the two counts should not be grouped because they 

 

2

That Guidelines provides:

All counts involving substantially the same harm shall be 

grouped together into a single Group. Counts involve 

substantially the same harm within the meaning of this rule:

(a) When counts involve the same victim and the same 

act or transaction.

(b) When counts involve the same victim and two or 

more acts or transactions connected by a common 

criminal objective or constituting part of a common 

scheme or plan.

(c) When one of the counts embodies conduct that is 

treated as a specific offense characteristic in, or other 

adjustment to, the guideline applicable to 

another of the counts.

(d) When the offense level is determined largely on the 

basis of the total amount of harm or loss, the quantity 

of a substance involved, or some other measure of 

aggregate harm, or if the offense behavior is ongoing 

or continuous in nature and the offense guideline is 

written to cover such behavior.

U.S. Sentencing Guidelines Manual § 3D1.2.
5

involved different harms and were not of the same general type of conduct. Thus, at the 

stage of analysis before the “acceptance of responsibility” issue was addressed, the Court

adopted an adjusted offense level of 24. 

The District Court then rejected Bigica’s request for an acceptance of 

responsibility reduction. The judge explained, “[i]n 13 years on the bench[,] I have never 

denied acceptance of responsibility,” but “[i]n this case I’m inclined to” because of 

Bigica’s apparent lack of compliance with Probation’s requests for financial 

documentation and refusal to curtail his extravagant lifestyle. (App. at 130.) The Court 

gave Bigica “every opportunity to prove” that he deserved the reduction but ultimately 

concluded that he had continued in his same lifestyle and had not fully complied with the

probation department’s request for financial documents. (Id.) The Court then calculated 

his Guidelines range as 51 to 63 months, and, after considering the factors set forth in 18 

U.S.C. § 3553(a), it sentenced Bigica to 60 months’ imprisonment. 

Bigica filed a timely notice of appeal. 3 

 

3

The government stipulated in the plea agreement that Bigica could appeal his 

sentence if the Court determined his offense level was above 21. 
6

II. Discussion4

Bigica contends that the District Court erred by failing to group his two counts of 

conviction together for sentencing, and by not holding an evidentiary hearing on his 

objection to the PSR. We address each argument in turn and conclude that the District 

Court was correct in both respects.5

A. Grouping of Counts

As noted earlier, § 3D1.2 of the U.S.S.G. provides, in relevant part:

All counts involving substantially the same harm shall be 

grouped together into a single Group. Counts involve 

substantially the same harm within the meaning of this rule

 

4

The District Court had jurisdiction pursuant 18 U.S.C § 3231. We have 

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. “[A] determination of 

whether ‘various offenses were part of one overall scheme’ [for grouping under the 

Guidelines] is essentially a factual issue which we review under a clearly erroneous 

standard. ... [W]hen reviewing the appropriateness of a grouping, deference must be 

given to the district court.” United States v. Seligsohn, 981 F.2d 1418, 1425-26 (3d Cir. 

1992), superseded by statute for other reasons as stated in United States v. Corrado, 53 

F.3d 620, 624 (3d Cir. 1995). “Our review of whether the district court properly 

complied with the mandate of Federal Rule of Criminal Procedure 32[] is plenary.” 

United States v. Furst, 918 F.2d 400, 406 (3d Cir. 1990). We review for abuse of 

discretion a district court’s decision to hold (or not to hold) an evidentiary hearing at 

sentencing. United States v. Houston, 217 F.3d 1204, 1206-07 (9th Cir. 2000); cf. United 

States v. Styer, 573 F.3d 151, 153-54 (3d Cir. 2009) (observing that the decision whether 

to hold an evidentiary hearing in connection with a motion for reduction of sentence was 

committed to the trial court’s discretion and reviewed for abuse thereof).

5 Bigica raises a third argument in his reply brief: he says the government violated 

the plea agreement by not arguing at sentencing that he was entitled to an offense-level 

reduction for acceptance of responsibility. We have consistently held that arguments 

made in reply briefs are waived. United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 

2005). Bigica fails to present any sound reason why we should not apply that rule in this 

case. In any event, the government did state at sentencing that it believed Bigica had 

honored the plea agreement and had therefore “accepted responsibility for purposes of the 

plea agreement.” (App. at 167.) The government’s motion to strike Bigica’s latebreaking argument or, alternatively, to file a sur-reply brief is denied as moot.
7

... (d) [w]hen the offense level is determined largely on the 

basis of the total amount of harm or loss, the quantity of a 

substance involved, or some other measure of aggregate 

harm, or if the offense behavior is ongoing or continuous in 

nature and the offense guideline is written to cover such 

behavior. 

U.S.S.G. § 3D1.2(d).6 The commentary expands on that section, stating, “Counts 

involving offenses to which different offense guidelines apply are grouped together under 

subsection (d) if the offenses are of the same general type and otherwise meet the criteria 

for grouping under this subsection. In such cases, the offense guideline that results in the 

highest offense level is used; see U.S.S.G § 3D1.3(b). The ‘same general type’ of offense 

is to be construed broadly.” Id. cmt. n.6. 

Bigica contends that the District Court erred in not concluding that his tax evasion 

and illegal campaign contribution counts were of the “same general type” so as to be 

grouped for purposes of sentencing. Specifically, he points to the District Court’s 

statement that the victims of his crimes were the same: the citizens of the United States. 7 

Therefore, as his argument goes, “[b]oth of these schemes involved fraud against the 

federal government and harm to ‘all citizens of the United States,’ making them the same 

general type” for grouping purposes. (Appellant’s Opening Br. at 11.)

 

6 No one contends that subsections (a), (b), or (c) of § 3D1.2 are applicable in this 

case.

7 Bigica’s characterization of the Court’s statement that the victims of his crimes 

were the American people as it relates to grouping is misleading. The Court was not 

addressing his grouping argument, but instead responding to his argument that his crimes 

had no victims at all for consideration under the § 3553(a) factors. 
8

Bigica is mistaken. At a high level of abstraction, every violation of federal law 

could be said to victimize the general citizenry, but taking that approach would make 

reasoned distinctions of the type contemplated by the Guidelines impossible. Not all 

criminal activity is of the same general type, and it should not be treated as such.

Tax evasion has the purpose of depriving the federal government of money owed. 

Federal election fraud, on the other hand, has the purpose of influencing a political figure

with forbidden donations of cash or other resources. Those crimes are plainly different 

and do not warrant grouping. Cf. United States v. Seligsohn, 981 F.2d 1418, 1425 (3d 

Cir. 1992) (concluding, inter alia, that tax evasion and bribery of a union official are not 

sufficiently related for grouping under § 3D1.2(d)), superseded by statute for other 

reasons as stated in United States v. Corrado, 53 F.3d 620, 624 (3d Cir. 1995). 

Accordingly, the District Court’s refusal to group the offenses was not erroneous, let 

alone clearly erroneous.

B. Requirement for an Evidentiary Hearing

Federal Rule of Criminal Procedure 32 provides that the District Court “must – for 

any disputed portion of the presentence report or other controverted matter – rule on the 

dispute or determine that a ruling is unnecessary either because the matter will not affect 

sentencing, or because the court will not consider the matter in sentencing ... .” Fed. R. 

Crim. P. 32(i)(3)(B). “When a defendant disputes facts included in a presentence report, 

Rule 32([i])(3)([B]) ... requires a sentencing court to resolve those disputes or to 

determine that it will not rely on the disputed facts in sentencing.” United States v. 

Gomez, 831 F.2d 453, 455 (3d Cir. 1987).
9

Bigica contends that, because he objected to paragraph 232 of the PSR, which 

contained an analysis of his financial condition and a representation that he had not been 

fully cooperative, he was entitled to an evidentiary hearing so the Court could rule on

disputed facts.

8

 That is not correct. Rule 32 does not make an evidentiary hearing

mandatory; it only requires the District Court to either make a finding as to the disputed 

facts or expressly disclaim use of the disputed facts in sentencing. United States v. Furst, 

918 F.2d 400, 408 (3d Cir. 1990). The Court here complied with that rule. At the 

beginning of the sentencing hearing, the Court specifically asked Bigica whether there 

were any factual errors or omissions contained within the PSR that needed to be 

addressed. He responded that there were factual inaccuracies, and the Court proceeded to 

either make findings regarding those alleged inaccuracies or state that it would not 

consider those facts. Bigica did not, however, state that there was a factual error with 

respect to the contents of paragraph 232 of the PSR. Moreover, at the sentencing hearing, 

the Court specifically asked Bigica to present his case as to why the PSR was not correct 

and why he should receive an acceptance of responsibility reduction. Tellingly, Bigica 

fails to address in meaningful fashion the following statement from the Court:

Here, the conduct of the defendant post plea that has been of 

concern to the Court, and which I have amply given the 

defendant and his counsel time and the opportunity to 

address, is first and foremost the compliance with the request 

of the United States Probation Office and recognition and 

honoring the promise made at the plea agreement of full 

 

8 Bigica does not indicate what evidence he would have presented at an 

evidentiary hearing, beyond financial documents that had already been submitted to the 

District Court. 
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restitution. The presentence report is replete with multiple 

examples that go far beyond any claim of mistake or error in 

judgment or an excusable neglect in not supplying complete 

and accurate information in his initial personal financial 

statements to the [P]robation [O]ffice.

(App. at 202.) The Court thus considered Bigica’s contested facts and decided not to 

draw the inferences he wished from those facts. Simply put, Bigica characterized the 

facts in the PSR differently, and the Court, after giving time for argument, found Bigica’s 

characterization unworthy of credence. There was no error in the sentencing procedure.

III. Conclusion

For the foregoing reasons, we affirm the sentence imposed by the District Court.