Filed: Jan. 08, 2013
Latest Update: Mar. 26, 2017
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-4244 _ UNITED STATES OF AMERICA v. JOSEPH PASSALAQUA, Appellant _ Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 10-cr-667-02) District Judge: Honorable Faith S. Hochberg _ Submitted Pursuant to Third Circuit LAR 34.1(a) December 4, 2012 Before: RENDELL, CHAGARES and GARTH, Circuit Judges. (Opinion Filed: January 8, 2013) _ OPINION OF THE COURT _ RENDELL, Circuit Judge.
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-4244 _ UNITED STATES OF AMERICA v. JOSEPH PASSALAQUA, Appellant _ Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 10-cr-667-02) District Judge: Honorable Faith S. Hochberg _ Submitted Pursuant to Third Circuit LAR 34.1(a) December 4, 2012 Before: RENDELL, CHAGARES and GARTH, Circuit Judges. (Opinion Filed: January 8, 2013) _ OPINION OF THE COURT _ RENDELL, Circuit Judge. D..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-4244
_____________
UNITED STATES OF AMERICA
v.
JOSEPH PASSALAQUA,
Appellant
____________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 10-cr-667-02)
District Judge: Honorable Faith S. Hochberg
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 4, 2012
Before: RENDELL, CHAGARES and GARTH, Circuit Judges.
(Opinion Filed: January 8, 2013)
____________
OPINION OF THE COURT
____________
RENDELL, Circuit Judge.
Defendant Joseph Passalaqua pled guilty to one count of conspiracy to interfere
with commerce by threat or violence in violation of 18 U.S.C. § 1951(a) for his part in
three armed robberies. He appeals from his sentence of 190 months of imprisonment,
arguing that the District Court was substantively unreasonable in varying 55 months
above the high end of his guidelines range. In light of the nature and circumstances of
Passalaqua’s crimes, the underrepresentation of his criminal history, and the need to
avoid disparities between Passalaqua and his co-defendants, the upward variance was
reasonable, and we will affirm.
I.
Passalaqua was a 56-year-old Temple University graduate and small-business
owner when he undertook a violent and bizarre crime spree in 2009. In an apparent effort
to raise funds to save his failing martial arts and gymnastics school, Passalaqua began
actively cultivating a reputation as a member of the mafia by hiring large men to escort
him to clubs where they posed as his bodyguards and entourage. Before long, Passalaqua
fell in with a group of criminals and began to live out his criminal fantasy.
Between December 2008 and September 2009, Passalaqua and a rotating group of
eight co-conspirators committed nine burglaries and five armed robberies. 1 Four of these
armed robberies were federally charged and Passalaqua played a substantial role by
planning and serving as a getaway driver in three of them: (1) the armed robbery of
Ristorante Barolo in New York City on May 11, 2009; (2) the home invasion and armed
robbery of the private residence of a local pizzeria owner in Milltown, New Jersey on
May 21, 2009; and (3) the armed robbery of Ritz Diner in Livingston, New Jersey on
1
On December 20, 2010, Passalaqua pleaded guilty in state court to nine burglaries and
one armed robbery committed during this crime spree. He was sentenced to fifteen years
on the robbery charge and five years on each burglary charge, all to run concurrently to
his federal sentence.
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June 5, 2009. 2 In each of the robberies, Passalaqua’s co-conspirators entered the
residence or establishment at night wearing masks, threatened the occupants with guns,
bound the occupants with zip-ties, and then used tools to pry open safes or forced victims
to input combinations. The home invasion was particularly brutal because the
perpetrators bound and assaulted the disabled woman they found asleep in the home and
waited for her husband to return home so that they could beat him before breaking into
the family’s safes. Passalaqua frequented the pizzeria owned by the victims and
allegedly picked their residence as a target in retaliation for a dispute over an outstanding
$700 bill.
Passalaqua was arrested on September 23, 2009, and began cooperating with the
government soon thereafter in anticipation of seeking a downward departure under
U.S.S.G. § 5K1.1. The government arrested several of Passalaqua’s co-conspirators based
on the information he provided. During the investigation, the government learned that
Passalaqua had failed to disclose that he and his co-conspirators robbed Ristorante
Barolo. Because of this omission, Passalaqua was no longer a credible cooperator and
the government had to then rebuild its case, which it did by offering a § 5K1.1 letter to
one of Passalaqua’s co-conspirators instead. Nevertheless, the parties entered into a
“guideline plea” in which both sides agreed to stipulate to certain facts and to
Passalaqua’s baseline offense level of 30. The guideline plea prohibited either side from
2
Passalaqua did not participate in the fourth armed robbery. Apparently angry about
being excluded, he approached the victims of the robbery and offered to kill the
perpetrators (his co-conspirators) for a fee. As part of the plea agreement, the
government dismissed the murder-for-hire charge against him.
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arguing for an upward or downward departure, adjustment, or variance from the offense
level of 30. The guideline plea did not address the criminal history category and both
parties reserved their rights relative to it.
Before the plea hearing, defense counsel requested a new plea agreement
containing only factual stipulations and no guidelines stipulation. The “fact stip plea,”
which was signed on December 4, 2010, did not include a stipulation as to Passalaqua’s
base offense level and did not prohibit either side from arguing for a sentence outside of
the guideline range.
A sentencing hearing was held on June 22, 2011, but continued to November 14,
2011, so that the Assistant United States Attorney (“AUSA”) who had been involved in
plea negotiations could be present. A disagreement about whether or not the government
should have informed the defense counsel that it planned to seek an upward variance as a
matter of professional courtesy when the defense requested the substitution of the fact
stip plea for the guideline plea was a focus of both hearings. Ultimately, the issue was of
little consequence as both sides agree the government was under no obligation not to seek
the variance or to inform the defense of its intent to seek it. Passalaqua never asked to
withdraw his plea, never alleged that the agreement was executed in bad faith, and agreed
to proceed under it (all of which the District Court confirmed during the hearings).
At the hearings, the parties agreed that under the guidelines, Passalaqua’s offense
level was 30 and his criminal history was category II, which yields a guidelines range of
108-135 months imprisonment. Passalaqua argued for a downward variance based on his
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cooperation. The District Court concluded that Passalaqua was not entitled to any
leniency based on cooperation given his lie to the government.
The government sought an upward variance to the statutory maximum of 240
months. After hearing argument from both sides, the District Court considered the 18
U.S.C. § 3553(a) factors and concluded that the brutality of the crimes, the trauma
inflicted on the victims, the need to deter such crime sprees, Passalaqua’s leadership role
in the conspiracy, his criminal history category that understated Passalaqua’s past, and
the sentences given to the other co-conspirators all weighed in favor of an upward
variance. The District Court sentenced Passalaqua to 190 months.
II.
Passalaqua claims that his sentence is substantively unreasonable because (1) the
§ 3553(a) factors favor leniency, not an upward variance; (2) the variance was driven by
emotion and was overly punitive; and (3) the sentence results in unwarranted sentencing
disparities.
The standard of review governing sentencing determinations is “abuse of
discretion.” Gall v. United States, 552 U.S. 38, 49 (2007). In reviewing a sentence
imposed, this Court considers the procedural reasonableness and the substantive
reasonableness of the sentence. Id. at 51. The “touchstone” of reasonableness is whether
the record as a whole reflects rational and meaningful consideration of the factors
enumerated in 18 U.S.C. § 3553(a). United States v. Grier,
475 F.3d 556, 571 (3d Cir.
2007) (en banc). “Under our highly deferential standard of review of a sentencing court's
decisions, we are to affirm a court’s procedurally sound sentence unless no reasonable
5
sentencing court would have imposed the same sentence on that particular defendant for
the reasons the district court provided.” United States v. Siddons, 660 F.3d 699, 708 (3d
Cir. 2011) (internal quotation marks omitted).
To begin, Passalaqua argues that the District Court inappropriately fixated on the
brutal nature of his crimes and did not adequately consider the other § 3553(a) factors.
The record, however, does not bear this out. The District Court considered each of the
§ 3553(a) factors, and identified those factors that weighed in favor of leniency (i.e. his
age and the unlikelihood of recidivism), other factors that were not relevant (i.e. the need
for additional education), and factors that weighed in favor of a longer sentence (i.e. the
brutality of the crimes, the sadistic character of the defendant, the need for deterrence,
and the need to avoid disparities between the most culpable co-conspirators).
Furthermore, the District Court did not fail to consider Passalaqua’s arguments as the
court did in United States v. Olhovsky, 562 F.3d 546 (3d Cir. 2009) (failing to consider
mitigating evidence because of a preoccupation with revolting nature of the child
pornography is reversible error), nor did the District Court merely recite the § 3553(a)
factors without any meaningful consideration of their applicability like the court in
United States v. Asburn,
502 F.3d 313 (3d Cir. 2007). Passalaqua’s reliance on these
cases is misplaced.
Passalaqua next attacks his sentence on the basis that the AUSA was overly
emotional and vindictive, and that this tainted the District Court’s reasoning. His brief
quotes from portions of the second sentencing hearing in which the AUSA expressed her
“personal fury” at the defendant and the “anxiety” and “nausea” she suffered as a result
6
of his lies during the investigation, and argues that the government’s motion for an
upward variance was retaliation for Passalaqua’s lie. This argument is flawed in several
respects. First, Passalauqa takes the AUSA’s comments out of context—the comments
were made in reference to the extended discussion about professional courtesy, and not
with respect to the government’s motion for an upward variance. Second, after learning
that Passalaqua had lied to the government and was no longer a viable cooperator, the
AUSA still offered (and Passalaqua initially accepted) a guidelines stipulation that would
have prevented the government from arguing in favor of an upward variance. Indeed, it
was Passalaqua who requested a fact stip plea allowing both sides to make variance
arguments. Additionally, the AUSA who moved for the upward variance was not the
AUSA who negotiated the pleas and expressed her personal fury at the defendant during
the second sentencing hearing (that AUSA was out on maternity leave at the time the
motion for an upward variance was made). Finally, the District Court expressly stated
that the disagreement between counsel would not affect its sentencing decision.
Passalaqua also argues that he was singled out for an upward variance and that his
sentence results in an unwarranted sentencing disparity between himself and his co-
conspirators. While Passalaqua is correct that the government did not seek upward
variances in the case of any of his co-conspirators, the government was bound not to
because each of his co-conspirators accepted a guidelines plea that he rejected.
Passalaqua’s disparity argument ultimately boils down to his contention that he is
more like co-conspirators Groem (1 robbery, 75-month sentence), Lally (1 robbery, 33-
month sentence), Landin (1 home invasion, 108-month sentence), Parolin (1 robbery, 79-
7
month sentence) and Prascak (1 robbery, 48-month sentence) than Danise (4 robberies,
received § 5K1.1 cooperation credit, pled to 18 U.S.C. § 924(c) with 84-month
mandatory minimum, 145-month sentence) and Paul (4 robberies, pled to § 924(c) with
84-month mandatory minimum, 219-month sentence). However, even defense counsel
agreed that Passalaqua, Danise, and Paul formed the “upper-echelon” of the conspiracy.
The District Court rejected Passalaqua’s argument that Danise’s and Paul’s sentences
should each be discounted by 84-months when comparing their sentences to his because
they pled to an additional § 924(c) count. Instead, the District Court reasoned that
Passalaqua was equally responsible for the brutality of the crimes and that the charging
decision of the government did not affect the basic culpability of the co-conspirators or
the similarity of their sentences.
III.
For the foregoing reasons, we will affirm the District Court’s judgment and
sentence.
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