USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2067
UNITED STATES OF AMERICA,
Appellee,
v.
DONATO F. ANGIULO,
Defendant, Appellant.
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No. 94-2068
UNITED STATES OF AMERICA,
Appellee,
v.
FRANCESCO F. ANGIULO,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Cyr and Boudin, Circuit Judges.
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Anthony M. Cardinale for appellants.
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James C. Rehnquist, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, and Ernest S.
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Dinisco, Assistant United States Attorney, were on brief, for the
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United States.
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June 15, 1995
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SELYA, Circuit Judge. This procedural motley requires
SELYA, Circuit Judge.
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that we explore the interstices of sentence-related criminal
rules that predate the inauguration of the federal sentencing
guidelines, and are in that sense relics of a bygone era.1
Having completed the judicial equivalent of an archaeological
dig, we deny the requested relief.
I. BACKGROUND
I. BACKGROUND
In 1983, a federal grand jury indicted the appellants,
Donato and Francesco Angiulo, along with several others, for
activities allegedly undertaken in furtherance of the affairs of
the Patriarca family of La Cosa Nostra. Though the indictment
charged certain members of the enterprise with predicate offenses
that included murder, it did not allege that Donato or Francesco
Angiulo personally had committed any homicidal acts. Following a
lengthy trial, a jury found the appellants guilty on a plethora
of counts, including conspiracy to make extortionate extensions
of credit, 18 U.S.C. 892(a), RICO conspiracy, id. 1962(d),
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racketeering violations, id. 1962(c), and operation of an
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illegal gambling business, id. 1955.
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On April 3, 1986, the Hon. David S. Nelson, who had
presided at the trial, convened a disposition hearing. The
colloquy focused on the presentence investigative reports (PSI
Reports). Among other things, both PSI Reports contained a
statement, under the heading "prosecution version," to the effect
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1We set forth in an appendix hereto the text of the relevant
procedural rules as they stood on the date of sentencing (April
3, 1986).
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that the enterprise with which the appellants were affiliated
the Patriarca family engaged in "crimes, including murder, as a
matter of duty," in order to advance familial interests. There
followed a compendium of felonies, including four murders and two
unconsummated murder conspiracies, allegedly committed by the
enterprise. Elliot Weinstein, Francesco Angiulo's attorney,
took umbrage at that account. He stated in part:
In support of my objection and request
to strike . . . I indicate that nowhere
during the proceedings in the case was there
any evidence or suggestion that my client was
involved in acts of murder, conspiracies to
murder or shared in any intent or desires for
the murder of any person at all. The
specifically named victims in the pre-
sentence report have no relationship
whatsoever to my client and indeed during the
course of the proceedings the government
stated to the Court at several sidebar
discussions and the Court indeed instructed
the jury that evidence as to murders was not
being admitted against Francesco Angiulo . .
. .
Robert Sheketoff, Donato Angiulo's lawyer, joined in the
objection. He termed the recital "misleading" and added:
My client was not charged with any
predicate acts involving murder. And I think
it is severely prejudicial the way they have
drafted this and it is not clear from the
report I would suggest either in the offense
section or in any point in the report that,
in fact, he was not charged, that there is an
affirmative statement that he was not charged
with any predicate acts of the verdict.
Judge Nelson overruled these objections and left intact the
references to the multiple murders. He proceeded to sentence
both Angiulos to lengthy terms of immurement. The brothers
appealed their convictions on other grounds, but eschewed any
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further challenge to the PSI Reports. Their appeals were
unavailing. See United States v. Angiulo, 897 F.2d 1169 (1st
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Cir.), cert. denied, 498 U.S. 845 (1990).
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On December 18, 1990, the appellants filed
substantially identical motions for sentence reduction in the
district court. They served these motions within 120 days of the
Supreme Court's denial of certiorari (which occurred on October
1, 1990). The motions invoked former Criminal Rule 35(b) and
spotlighted a purported disparity between the sentences
appellants received and the sentences appellants would have
received under the newly minted federal sentencing guidelines.
The government filed objections to the motions and subsequently
served a detailed opposition.
Toward the end of 1991, the appellants, acting pro se,
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each filed an undated "Rule 35 Reply" that bemoaned the adverse
parole-related effects of the references to murder in the PSI
Reports. These pleadings raised, for the first time, the charge
that Judge Nelson had violated Fed. R. Crim. P. 32(c)(3)(D) in
the course of imposing sentence. On January 24, 1992, the
appellants, through new counsel, each filed in the district court
a pleading entitled "Appeal Pursuant to 28 C.F.R. 542.15 and/or
Motion Pursuant to Rule 32(c)(3)(D)." These pleadings described
the anticipated adverse effects of the murder references
contained in the PSI Reports, and sought the expungement of those
references. In each instance, the clerk of court docketed the
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pleading as a separate motion. The contents are consistent with
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that characterization: each pleading clarified that "[t]he
alternative and additional remedy [each appellant] seeks pursuant
to Fed. R. Crim. P. 32(c)(3)(D) is simply another more expedient
manner of effecting the relief he has previously sought
administratively."2 These pleadings adopted the defendants'
earlier Rule 35(b) motions by reference but cautioned that the
new initiatives should be viewed separate and apart therefrom "as
an effort to implement the Rule 32 requests [that each] defendant
made at the time of his sentencing."
Matters remained dormant for a spell, presumably
because Judge Nelson assumed senior status. Eventually, the Hon.
William G. Young stepped into the void. On April 25, 1994, Judge
Young denied the appellants' Rule 35(b) motions, concluding that
the sentences imposed by Judge Nelson were "entirely justified
and necessary" to vindicate important public policy concerns.
United States v. Angiulo, 852 F. Supp. 54, 62 (D. Mass. 1994).
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The Angiulos did not prosecute appeals from the denial of their
Rule 35(b) motions.
On May 31, 1994, the appellants filed a written request
asking Judge Young to hold a "status conference regarding
defendants' motions pursuant to Rule 32(c)(3)(D)." Although the
record is tenebrous as to whether such a conference materialized,
the request sufficed to bring the Rule 32 motions to the
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2The regulation cited in the January 24 pleadings describes
the procedure for administrative appeals within the Bureau of
Prisons, but makes no mention of judicial review. See 28 C.F.R.
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542.15 (1994).
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forefront. In an unpublished rescript dated September 12, 1994,
Judge Young addressed those motions. He discerned no violation
of Rule 32, finding that the objections proffered at the
disposition hearing did not dispute the factual accuracy of the
murder references. In the bargain, the court expressed doubt
about the intrinsic merit of the objections, indicating that the
statements contained in the PSI Reports were not misleading, and,
moreover, were directly relevant to the sentencing determination.
The appellants filed these timely appeals in the wake
of the court's September 12 order. They seek either resentencing
or, in the alternative, redaction of the PSI Reports to remove
the murder references that they believe are hindering their
chances to secure parole.
II. ANALYSIS
II. ANALYSIS
We start with bedrock. Although a district court's
denial of a motion for sentence reduction under former Rule 35(b)
is a final order, and, thus, an appealable event, see, e.g.,
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United States v. McAndrews, 12 F.3d 273, 278 (1st Cir. 1993); see
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also United States v. Distasio, 820 F.2d 20, 24 (1st Cir. 1987)
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(holding the grant of a sentence reduction to be an appealable
order), the present appeals are not of that persuasion. The
district court denied the Rule 35(b) motion by order entered
April 25, 1994, and no action was taken within the applicable
appeal period. See Fed. R. App. P. 4(b) (providing that such
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appeals must be taken within 10 days from date of entry of the
order); see also United States v. Morrillo, 8 F.3d 864, 867 (1st
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Cir. 1994) (explaining that the time limits for taking appeals in
criminal cases are "mandatory and jurisdictional"). Hence, the
district court's Rule 35(b) determinations are not susceptible to
review at this late date.3
Refined to bare essence, the defendants' appeals must
stand or fall based on Fed. R. Crim. P. 32. We think they fall.
Criminal Rule 32 provides no independent foundation for a
postsentence motion to correct a PSI Report and, under the
circumstances that obtain here, the appellants' motions cannot
properly be recharacterized as timely motions under Rule 35. We
explain briefly.
We frequently have recognized the importance of Rule 32
and we have emphasized its requirement of literal compliance.
See, e.g., United States v. Hanono-Surujun, 914 F.2d 15, 18-20
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(1st Cir. 1990); United States v. Jimenez-Rivera, 842 F.2d 545,
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550-51 (1st Cir.), cert. denied, 487 U.S. 1223 (1988). These
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attributes, however, do not create jurisdiction for a court to
entertain postsentence motions alleging violations of Rule 32.
In the absence of either an enabling statute or language in the
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3In any event, former Rule 35(b) conferred virtually
unfettered discretion on sentencing courts. See, e.g., United
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States v. DeCologero, 821 F.2d 39, 41 (1st Cir. 1987) (discussing
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breadth of district court's discretion). Thus, it seems highly
unlikely that Judge Young's refusal to grant relief thereunder
could successfully have been challenged,especially given the
obvious inadequacy of the motions' linchpin assertion. See
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United States v. Twomey, 845 F.2d 1132, 1134-35 (1st Cir. 1988)
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(upholding denial of Rule 35(b) motion and explaining that
district courts have no obligation to harmonize sentences for
pre-guidelines offenses with sentencing results produced by
application of the guidelines).
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rule's text that could conceivably be read as authorizing such
jurisdiction, we hold that Rule 32, in and of itself, does not
confer district court jurisdiction to conduct a postsentence
review. Accord United States v. Engs, 884 F.2d 894, 895 (5th
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Cir. 1989) (agreeing that "no postsentence jurisdiction exists
based solely on Rule 32(c)(3)(D)"); United States v. Giaimo, 880
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F.2d 1561, 1563 (2d Cir. 1989) (holding that "Rule 32, standing
alone, does not give a district court jurisdiction to correct
inaccuracies in a PSI report after a defendant has been
sentenced"); United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.
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1988); United States v. Peloso, 824 F.2d 914, 915 (11th Cir.
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1987); United States v. Williams, 618 F. Supp. 1419, 1420 (E.D.
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Va. 1985), aff'd, 785 F.2d 306 (4th Cir. 1986); United States v.
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Sheela, 667 F. Supp. 724, 726 (D. Or. 1987); United States v.
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Burkhead, 567 F. Supp. 1425, 1427-28 (W.D. Mo. 1983).4
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Appellants try to locate a serviceable vehicle for
their Rule 32 claims by characterizing their supplementary
motions as ones that were brought under Rule 35. We, and other
courts, sometimes have allowed violations of Rule 32 to be
addressed in timely Rule 35 motions. See, e.g., United States v.
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Feigenbaum, 962 F.2d 230, 232-33 (2d Cir. 1992); United States v.
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Smith, 844 F.2d 203, 207 (5th Cir. 1988); Sarduy, 838 F.2d at
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158; United States v. Katzin, 824 F.2d 234, 237-38 (3d Cir.
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4At least one court has reached an opposite conclusion. See
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United States v. Hart, 922 F.2d 613, 615 (10th Cir. 1990). With
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respect, we regard Hart as wrongly decided and we decline to
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follow it.
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1987); Peloso, 824 F.2d at 915; United States v. Santamaria, 788
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F.2d 824, 828-29 (1st Cir. 1986). This avenue of review,
however, is properly seen as founded on former Rule 35(a), and
more particularly, on the prong of former Rule 35(a) that permits
a district court to "correct a sentence imposed in an illegal
manner." Like motions arising under former Rule 35(b), such Rule
35(a) motions must be filed within 120 days next following the
entry of final judgment.5
In view of this legal mise-en-scene, the appellants'
attempt to anchor jurisdiction on former Rule 35 suffers from
several infirmities which, taken together, prove fatal to their
endeavor. First, jurisdiction to review the alleged violations
of Rule 32 cannot be based on Rule 35(b) in the circumstances of
this case. While the district court permissibly could have
considered any Rule 32 irregularities when it decided the Rule
35(b) motions for discretionary sentence reduction in April of
1994, it had no obligation to do so, and, in all events, the
Angiulos did not take timely appeals from the denial of these
motions.
Second, the circumstances do not permit jurisdiction
properly to be premised on former Rule 35(a). The appellants
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5Although former Rule 35(a) also allowed a district court to
correct an "illegal sentence at any time," that remedy was not
available to address a Rule 32 violation because "illegal
sentences" were limited to those that "`exceed the relevant
statutory maximum limits or violate double jeopardy or are
ambiguous or internally contradictory.'" Katzin, 824 F.2d at 237
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(quoting 8A James W. Moore, Moore's Federal Practice 35.03[2],
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at 35-36 (2d ed. 1987)).
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neither cited that rule to Judge Young nor attempted to base
jurisdiction on it; and, as we have said, "absent the most
extraordinary circumstances, legal theories not raised squarely
in the lower court cannot be broached for the first time on
appeal." Teamsters, Chauffeurs, Warehousemen & Helpers Union,
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Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.
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1992). This principle is fully applicable in criminal cases.
See, e.g., United States v. Slade, 980 F.2d 27, 30 (1st Cir.
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1992).
Furthermore, in order to use former Rule 35(a) as a
vehicle to review ostensible Rule 32 violations, appellants would
have needed to file their motions within 120 days of the Supreme
Court's denial of certiorari. The initial Rule 35(b) motions
were docketed within that time span, but the first pleadings that
mentioned Rule 32 were not served until well after the 120-day
period expired. Even if these subsequent attempts somehow could
be deemed to implicate Rule 35(a), the failure to comply with the
120-day deadline would defeat jurisdiction.6 See United States
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v. Ames, 743 F.2d 46, 48 (1st Cir. 1984) (noting that the time
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limitations specified in former Rule 35 are mandatory and
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6It is often assumed that inaccuracies in a PSI Report may
form the basis for a petition under 18 U.S.C. 2255. See United
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States v. Gattas, 862 F.2d 1432, 1433-34 & n.4 (10th Cir. 1988);
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United States v. Mosquera, 845 F.2d 1122, 1124 n.1 (1st Cir.
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1988). In addition, courts have suggested that such relief may
be obtainable pursuant to 18 U.S.C. 2241. See Peloso, 824 F.2d
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at 915; United States v. Daniels, 737 F. Supp. 111, 114 (D. Me.
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1990). The appellants have not asserted jurisdiction under
either of those statutes, and they have expressly disclaimed
reliance on section 2255. Thus, we take no view of the
appropriateness vel non of any such potential remedies.
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jurisdictional), cert. denied, 469 U.S. 1165 (1985).
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III. CONCLUSION
III. CONCLUSION
In this instance, all roads lead to Rome. On one hand,
the appellants did not perfect timely appeals from the district
court's denial of their Rule 35(b) motions, and, hence, those
motions are dead letters. On the other hand, insofar as the
appellants' postsentence motions rest on Rule 32, simpliciter,
the district court lacked jurisdiction to consider them.7
Affirmed.
Affirmed.
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7Of course, the district court should simply have denied the
Rule 32 motions for lack of jurisdiction, rather than reaching
the merits of the alleged Rule 32 violations. Accordingly, its
comments, though insightful, should not be accorded binding force
or effect if further proceedings eventuate.
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APPENDIX
APPENDIX
Former Criminal Rule 35, which applies to offenses
committed prior to November 1, 1987, provides in pertinent part:
(a) Correction of Sentence. The court
(a) Correction of Sentence.
may correct an illegal sentence at any time
and may correct a sentence imposed in an
illegal manner within the time provided
herein for the reduction of sentence.
(b) Reduction of Sentence. A motion to
(b) Reduction of Sentence.
reduce a sentence may be made, or the court
may reduce a sentence without motion, within
120 days after the sentence is imposed or
probation is revoked, or within 120 days
after receipt by the court of a mandate
issued upon affirmance of the judgment or
dismissal of the appeal, or within 120 days
after entry of any order or judgment of the
Supreme Court denying review of, or having
the effect of upholding, a judgment of
conviction or probation revocation. . . .
Fed. R. Crim. P. 35.
Criminal Rule 32(c)(3)(D), as applicable to offenses
committed prior to November 1, 1987, provides that:
If the comments of the defendant and the
defendant's counsel or testimony or other
information introduced by them allege any
factual inaccuracy in the presentence
investigation report or the summary of the
report or part thereof, the court shall, as
to each matter controverted, make (i) a
finding as to the allegation, or (ii) a
determination that no finding is necessary
because the matter controverted will not be
taken into account in sentencing. A written
record of such findings and determinations
shall be appended to and accompany any copy
of the presentence investigation report
thereafter made available to the Bureau of
Prisons or the Parole Commission.
Fed. R. Crim. P. 32(c)(3)(D).
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