Filed: Mar. 13, 2017
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-3503 _ UNITED STATES OF AMERICA v. ANIELLO PALMIERI, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-13-cr-00649-001) District Judge: Honorable William H. Walls _ Submitted Under Third Circuit L.A.R. 34.1(a) March 7, 2017 Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges. (Filed: March 13, 2017) _ OPINION* _ * This disposition is not an opinion of t
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-3503 _ UNITED STATES OF AMERICA v. ANIELLO PALMIERI, Appellant _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-13-cr-00649-001) District Judge: Honorable William H. Walls _ Submitted Under Third Circuit L.A.R. 34.1(a) March 7, 2017 Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges. (Filed: March 13, 2017) _ OPINION* _ * This disposition is not an opinion of th..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-3503
____________
UNITED STATES OF AMERICA
v.
ANIELLO PALMIERI,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-13-cr-00649-001)
District Judge: Honorable William H. Walls
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 7, 2017
Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.
(Filed: March 13, 2017)
____________
OPINION*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.
Aniello Palmieri appeals his judgment of sentence following his conviction for
mail fraud. Palmieri claims the District Court erred both in denying a downward
departure and in applying a sentencing enhancement related to his status as a public
official. We will affirm.
I
As Director of the Division of Facilities Management for Union County, New
Jersey, Palmieri assisted in selecting vendors for building materials, tools, and other
supplies. At the time of his retirement, Palmieri’s salary exceeded $111,000, and he
oversaw millions of dollars of purchases annually. From 2006 to 2010, Palmieri used his
influence to participate in kickback schemes, verifying false and inflated invoices and
receiving a portion of the vendors’ wrongful profit in return.
In 2010, Palmieri agreed to cooperate with law enforcement officials in their
attempt to prosecute the participants in one of these schemes. Palmieri helped officials
gather useful evidence for corruption prosecutions, including recording over 50 in-person
conversations.
On October 2, 2013, Palmieri pleaded guilty to one count of mail fraud. At
sentencing, the District Court found that Palmieri qualified for a four-level enhancement
as a “public official in a high-level decision-making or sensitive position.” United States
2
Sentencing Guidelines (USSG) § 2C1.1(b)(3). Although the Government moved for a
downward departure based on Palmieri’s substantial assistance under § 5K1.1 of the
Guidelines, the Court denied the motion. In doing so, the Court expressed frustration with
the “ridiculous” pattern of prosecutors requesting downward departures for “people who
were corrupt in their public duty.” App. 31–32. Regarding Palmieri, the Court stated that
his cooperation “does not impress this court,” particularly where “[t]he other persons
were not in his level.” App. 36. The District Court sentenced Palmieri to 70 months’
imprisonment, the bottom of his Guidelines range.
II1
Palmieri challenges both the District Court’s denial of a downward departure and
its imposition of the public official enhancement. We see no merit in either challenge.
A
As for Palmieri’s first challenge, we lack jurisdiction to review the discretionary
denial of a motion for downward departure based on substantial assistance unless “the
district court was not aware of or did not understand its discretion to make such a
departure.” United States v. Grier, 585 F.3d 138, 141 (3d Cir. 2009). Here, the District
Court—which referred to its “discretion” to grant or deny the motion, App. 29—was
clearly aware of its power to grant Palmieri a downward departure.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
3
Palmieri insists we retain jurisdiction over whether the District Court gave “any
meaningful analysis to the enumerated factors in [USSG § ]5K1.1.” Palmieri Br. 9. He
relies primarily on United States v. Torres, which held a sentencing court considering a
departure for substantial assistance “not only must conduct a qualitative, case-by-case
analysis but also must examine § 5K1.1’s enumerated factors,” and found jurisdiction to
review that examination for adequacy. 251 F.3d 138, 147 (3d Cir. 2001).
Even assuming that we have jurisdiction to review the District Court’s
examination of these factors, the District Court met the standard set by Torres. We held in
Torres that the district court “met its burden under § 5K1.1” where, despite not
“articulat[ing] the details of Torres’s substantial assistance,” the court “heard and
considered arguments that covered each factor enumerated in the Guidelines . . . indicated
its awareness of Torres’s assistance in relation to the § 5K1.1 factors [and] balanced the
seriousness of Torres’s offense against his substantial efforts to assist the government’s
investigation.” 251 F.3d at 148–49. Here, the District Court: (1) heard argument relevant
to the § 5K1.1 factors, App. 27–29; (2) acknowledged § 5K1.1 as the source of the
Government’s position, App. 29; and (3) conducted an individualized assessment of
Palmieri’s circumstances, including the significance of his assistance. App. 36, 48. While
we express no opinion as to the merit of the concerns expressed by the District Court
when reviewing Palmieri’s assistance, we note that “[p]olicy considerations are not off-
limits in sentencing” so long as a defendant is being assessed as an individual. United
4
States v. Levinson, 543 F.3d 190, 200 (3d Cir. 2008) (citation omitted). Accordingly, the
District Court acted within its discretion in denying the Government’s § 5K1.1 motion.
B
Palmieri also challenges his four-level enhancement, arguing that he was not a
“public official in a high-level decision-making or sensitive position” under the meaning
of USSG § 2C1.1(b)(3). We review the District Court’s determination for clear error.
United States v. Richards, 674 F.3d 215, 216 (3d Cir. 2012).
The application notes to § 2C1.1(b)(3) explain that a high-level decisionmaking or
sensitive position is “characterized by a direct authority to make decisions for, or on
behalf of, a government department, agency, or other government entity, or by a
substantial influence over the decision-making process.” USSG § 2C1.1, app. n.4(A)
(emphasis added); see also United States v. Savani, 733 F.3d 56, 62 (3d Cir. 2013)
(“[G]uidelines commentary, interpreting or explaining the application of a guideline, is
binding on us.”).
Palmieri has not shown how the District Court erred when it found he exercised
substantial influence over the vendor selection process. Furthermore, he fails to
distinguish our decision in Richards, where we upheld a § 2C1.2(b)(3) enhancement
using an identical definition of “public official in a high-level decision-making or
sensitive position.” While the official in Richards, like Palmieri, “could not act officially
on the County’s behalf,” he exercised substantial influence through recommendations to
5
his superiors. 674 F.3d at 217; see also
id. at 224.2 Therefore, the District Court did not
clearly err when it enhanced Palmieri’s sentence pursuant to § 2C1.1(b)(3).
* * *
We will affirm the District Court’s judgment for the reasons stated.
2
Palmieri offers one out-of-circuit case, United States v. Stephenson, where the
Second Circuit declined to apply his enhancement (then § 2C1.1(b)(2)) to an Export
Licensing Officer who participated in a bribery scheme. 895 F.2d 867, 878 (2d Cir.
1990). Stephenson is inapposite for three reasons. First, the court was engaged in de novo
review, while we are reviewing the District Court’s determination only for clear error.
Id.
at 877–78. Second, the court primarily addressed the government’s theory that the
defendant held a “sensitive” position, finding his discretion and security clearance did
“not set him apart from a multitude of personnel in the federal service.”
Id. at 878.
Finally, a sentencing court could reasonably consider the defendant in Stephenson—
earning $40,000 a year as one of many Export Licensing Officers—as lower level than
Palmieri, who was a county-wide director earning over six figures.
6
