GRECCO v. USA, et al

Filing 56

OPINION. Signed by Judge Claire C. Cecchi on 3/31/2015. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALAN GRECCO.

Civil Action No.: 97-0298
Defendant-Movant,
OPINION

v.
UNITED STATES OF AMERICA,
Respondent.

CECCIII, District Judge.
I.

INTRODUCTION

This matter comes before the Court upon moti
on of Alan Grecco (“Defendant” or
“Movant”) for relief from final judgment purs
uant to Fed. R. Civ. P. 60(b). [ECF No. 44.)
The
United States of America (“Government” or “Res
pondent”) opposed the motion. [ECF No.
51.1
The motion is decided without oral argument purs
uant to Fed. R. Civ. P. 78. For the reasons set
forth below, Movant’s motion is denied.
II.

BACKGROUND
A.

Underlying Conviction

On July 26, 1989, Defendant was arrested and
charged with an eight-count indictment
alleging his involvement in a criminal enterprise
—a faction of the Genovese Family of La Cosa
Nostra—the “primary purpose” of which “was
to obtain money for its members and associates
through the operation of two illegal gambling busi
nesses”. (Protass Dccl., Ex. 4.) While this
group sought to illegally enrich themselves throu
gh these gambling businesses, they “used fear

and violence to eliminate competition”, inclu
ding “threaten[ing] the operators of rival gam
bling
businesses.” (Protass Dccl., Ex, 5.) The
indictment alleged that Defendant was princ
ipal
assistant to the leader of this criminal enter
prise: he “resolved day-to-day disputes and
oversaw
the Enterprise’s sports and numbers gambling
businesses” as well as “conducted and cons
pired
in acts of murder and extortion to further the
objectives of the enterprise.”
(j4)
The indictment charged Defendant and his
co-defendant with conducting the affairs of
the Genovese Family through a pattern of
racketeering activity, in violation of the Rack
eteering
Influenced Corrupt Organizations (“RICO”
) Act, 18 U.S.C. § 1961(c). (Id.) The indic
tment
specified six predicate racketeering acts
constituting this “pattern of racketeering
activity”,
including conspiracy to murder Vincent
1
Mistretta. (Id.) Mistretta had, according
to the
indictment, contacted the Lodi Police
Department after a dispute with Defendan
t caused
Mistretta to fear for his safety. (Id.) In
April 1979, Mistretta was stabbed to death
with an
icepick by “[Defendant] and another person”.
(Id.)
After a lengthy trial in front of Judge Harold
Ackerman, Defendant was found guilty on
all counts of the indictment, including all char
ged predicate racketeering acts.
B.

Sentencing

Prior to Defendant’s sentencing, the Probation
Department prepared a Presentence Report
(“P5W’). The PSR examined the predicate
act of conspiracy to murder Mistretta unde
r the thenmandatory Sentencing Guidelines and calcu
lated a base offense level of 43 under
Guideline

The indictment specifically states that the cons
piracy to murder Mistretta was “in violation
of the laws of New
Jersey”. (Id)

2

2
§ 2A1.l, translating to a sentence of life imprisonment.

(Movant Mot. pp. 12-13.)

At

Defendant’s sentencing hearing on November ii, 1991
, much of the legal argument centered on
whether, and which, Sentencing Guidelines appl
ied to Defendant’s conviction. (See Protass
Decl., Ex. 13.) Specifically, Defendant argued that
the Sentencing Guidelines did not apply to
his criminal conduct, especially the predicate offen
se of conspiracy to commit murder, because
all such acts occurred prior to the Sentencing Refo
rm Act. (4,,) If the Sentencing Guidelines did
apply to his conduct, Defendant argued, it would
violate the Ex Post Facto Clause for Guideline
§ 2A1 .1 (“First Degree Murder”) to be applied—pursuant to Guideline
§ 2A1 .5 of the 1992
Sentencing Guidelines—since § 2A1 .5 (“Conspiracy
or Solicitation to Commit Murder”) was
added to the Guidelines after Defendant was indic
ted. (Id.) Defendant instead contended that
Guideline § 2A2. 1 of the 1988 Guidelines (“Assault
With Intent to Commit Murder; Conspiracy
or Solicitation to Commit Murder; Attempted Mur
der”) should be applied. (Id.)
Judge Ackerman rejected Defendant’s argumen
ts, adopted the factual findings of the
PSR, and concluded that Defendant’s convictio
n carried a base offense level of 43. (Id.)
Acknowledging that Guideline 2A 1.1 applied,
§
Judge Ackerman noted:
The commentary [to § IB1.3] states, if the
conviction is for
conspiracy, it includes conduct in furtherance of
the conspiracy
that was known to or was reasonably foreseeable
by the defendant,
unquote. The probation officer continues. The
relevant conduct,
i.e.. the conduct in furtherance of the conspirac
y was murder.
The relevant section is the one used in the
Presentence report,
Section 2A 1.1, which applies to first degree murd
er,
I agree
with the position taken by the probation offic
er and by the
.

.

.

2
Specifically. Probation found that: (1) the applicabl
e Guideline for conspiracy was 2X1.l, (2) unde
r § 2X1.l, the
base offense level is the same as for the object
offense, (3) the object offense was First Degree Mur
der, and (4) the
applicable Guideline for First Degree Murder is
§ 2A1.1. which specifies a base offense level of 43. (Movant Mot.
pp. 12-13.) As set forth more fully below, the Court
concludes that a base offense level of 43 was prop
er regardless
of whether § 2X1.1 should or should not have been
applied.

3

government in this regard.
(Id. at 44-45.) Given that the Guideline range for

§ 2A1. 1

was above the statutory maximum of

20 years imprisonment, Judge Ackerman sentenced Defendant
to the statutory maximum on each

count of conviction, resulting in a total sentence of 65 years
imprisonment.

(i at 49-50.) In so

doing, Judge Ackerman powerfully observed:
This case, as we all know, as found by the jury’s verdict,
is about
more than just gambling. It is about intimidation, extorti
on,
violence and, indeed, on that fa[tejful night in April
of 1979,
murder. To those who say that gambling is a victimless crime,
the
evidence in this case forcefully demonstrates to the contrar
y.
The picture of Mr. Mistretta with an ice pick in the back
of his
neck as he lay at the bottom of the stairs in front of Mr. Galina
’s
residence on that rainy night unfortunately was an
eloquent
reminder of the fact that the necessity to maintain the viabili
ty and
profitability [of] a crime family, such as this, in a multi-m
illion
dollar enterprise requires something more than just calcula
ting
what number won today or what was the spread on the game.
(kt at 55.)
C.

Prior Appeals

On direct appeal, Movant reiterated his ex post facto argument,
alleging that the District
Court arrived at a base offense level of 43 by improperly
using Guideline
commanded by

§ 2A 1.1 as

§ 2A1.5 of the 1992 Sentencing Guidelines. The Government countered that the

District Court did not reach

§ 2A1.l through § 2A1.5. but by proceeding directly from § 2E1.l.

the Guideline applicable to RICO convictions. This Guideline
prescribes a base offense level of
either 19 or “the offense level applicable to the underlying
racketeering activity”

LS.S.G.

§ 2E1. l(a)(2). Respondent argued that Judge Ackerman properly considered Mistretta’s murde
r
as “relevant conduct” to determine the applicable offense level
under

§ 2E1,l’s description of

“underlying racketeering activity”. The Third Circuit rejecte
d Movant’s arguments and affirmed
4

Movant’s conviction as well as his sentence.
Movant then collaterally attacked his conviction and sentence in this Court
via a petition
for writ of habeas corpus under 28 U.S.C.

3
§ 2255 (the “2255 Petition”). (Protass Decl., Ex. 17.)

With respect to Movant’s sentence, Judge Ackerman denied habeas relief
because Movant’s
arguments had been “previously litigated and decided both by this court
and by the Court of
Appeals” and “the intervening law cited by [Movant] does not impact the
bases for this court’s
previous sentence”. (Protass Decl., Ex. 17, at 29.) Judge Ackerman went on
to explain:
Moreover, even if this court were to re-examine [Movant’s] claim,
I would once again find it without merit. The parties agree that
§ 2E 1.1 is the sentencing provision applicable to RICO claims.
That section directs the court to apply “the offense level applicable
to the underlying racketeering activity.” Further, the introductory
commentary to § 2E1 .1 indicates that the court should usually
apply the offense level of the underlying conduct. [Movant] was
convicted of conspiracy to murder Vincent Mistretta, with the
overt act being the murder of Mistretta. The sentencing provision
applicable to murder is § 2Al.1.
Accordingly, [Movant’s]
sentence was imposed pursuant to the 1988 Guidelines and did not
violate [Movant’s] due process rights or the ex post facto clause.
(Id. at 29-30.)
D.

Current Motion

The instant motion is Movant’s latest attempt to relitigate the senten
ce imposed by Judge

Ackerman in 1991. He contends that Judge Ackerman’s sentencing determ
inations were “based
in part on a series of errors relating to the calculation of Mr. Grecco
’s offense level under the
then-mandatory United States Sentencing Guidelines” and those errors
“caused Judge Ackerman

Movant also collaterally attacked his conviction and sentence on
several other occasions, 5,ge Grecco v. United
States Cr \o 9’ 2098 (D J Apr 1 2000) 4ffd 29 F App
x 51(3dCir 2002) Grecco v \VjJjmson Ci
No 0 852 2005 V 1 1138463 (M D Pa Ma 13 200c) (seeking rLtroac
nve application of pççr) affd 152 F
App’x 195 (3d Cir. 2005): Grecco v. United States, Civ. No, 06-407
(D.N,J. Aug. 6, 2007) (same).

5

to incorrectly conclude that Mr. Grecco’s offense level was
47. 13 levels higher than it should
have been.”

(Id. at 1.)

In opposition, Respondent raises several procedural objecti
ons to

Movant’s use of Rule 60(b) and also argues that Movant is
not entitled to relief on the merits.
To date, Movant has served about 25 years of his 65-year
sentence, (Movant’s Mot.
at 1.)

Movant notes that he has a “blemish-free” prison record
and “has no siguificant

disciplinary infraction or incident during his more than 24 years
of imprisonment—no violence,
behavioral issues, weapons. narcotics or alcohol violations.”

(Id. at 6.)

Movant’s motion

recounts the ways in which he is a caring husband and father
and explains: “[a]ll that Mr. Grecco
wants to do is spend time with his family.”
III.

( at 5.)

DISCUSSION
A.

Procedural Grounds

In light of Movant’s multiple attempts to seek collateral review
of his conviction and
sentence, Respondent raises several procedural challenges
to Movant’ s use of the Rule 60(b)
remedy.

Respondent’s central argument is that the instant motion
should be construed as a

successive 2255 petition over which this Court does not posses
s jurisdiction. (Resp’t Opp’n at 67.) Additionally, Respondent argues that, even if treated as true
a
Rule 60(b) motion, the motion
is untimely. (Id. at 5-6.) Lastly, Respondent argues that Movan
t may not challenge Judge
Ackerman’s alleged guideline calculation errors through a
1,

2255 proceeding. (Id. at 7-1 1.)

Successive Petition

Rule 60(b) motions are creatures of the Federal Rules of Civil
Procedure that are rarely
cognizable in the habeas context
4

See glezyCrosb, 545 US. 524, 529-30 (2005).

Rule 60(b) provides, in pertinent part:

6

Subsection (b)(6) of Rule 60, the subsection relied upon
by Movant, “is a catch-all provision that
authorizes a court to grant relief from a final judg
uent” in cases that present “extraordinary
circumstances where, without such relief, an extre
me and unexpected hardship would occur.”
Cox v. Horn. 757 F.3d 1 13, 120 (3d Cir. 2014) (quo
ting Sawka v. Healtheast, Inc., 989 F.2d 138,
140 (3d Cir. 1993)). The Third Circuit has held that
Rule 60(b) analyses are to be considered on
a case-by-case basis, taking into account “equitable facto
rs” and “the particulars of a movant’s
case.” Id. at 122 n.4 (collecting cases). However, Rule
60(b) motions are rare in post-conviction
proceedings because these motions intersect with
the “successive petition” bar, which requires a
movant to bring all of his or her claims in one habe
as petition—any claim already adjudicated, or
that should have been adjudicated, in a prior habe
as proceeding may not be brought in a district
court without first obtaining permission from the
court of appeals. Gonzalez, 545 U.S. at 52930; 28 U.S.C. § 2244(b). The Court must therefore
determine whether the instant motion is an
improper successive petition that bars relief, or a prop
erly brought motion under Rule 60(b).
Respondent relies heavily on language in Gonzalez
that delineates the difference between
a properly brought Rule 60(b) motion in a habeas
case and a cloaked successive 2255 petition.
5
In Gonzalez, the Supreme Court explained that a
properly brought Rule 60(b) application will
seek to attack the prior resolution of the movant’s
claims by the federal courts on the merits.

On motion and upon such terms as are just, the court ma
relieve a party... from a final judgment. order,
or proceeding for the following reasons: (1) mistake,
inadvertence, suirise. or excusable neglect: (2) newly
discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for
a
new trial under Rule 59(b): (3) fraud (whether previo
usly called intrinsic or extrinsic), misrepresenta
tion. or
misconduct by an opposing party: (4) the judgment
is void: (5) the judgment has been satisfied, release
d or
discharged: it is based on an earlier judgment that has
been reversed or vacated: or applying it prospecti
vely
is no longer equitable; or (6) any other reason justi
fying relief from the operation of the judgment.
The Court notes that Gonzalez expressly limited its
application to state habeas cases, as opposed to
2255
proceedings for federal criminal actions. 5gg 535
at 529 n.3. Since pglez was decided, several
courts have
applied its reasoning in 2255 cases: this Court will
likewise apply Gonzalez. See. gg,. In re Pickard,
681 F3d 1201
(l0thCir. 2012) (discussed infra); U.S.
v.Hg. 2014 WL 1345953 (E.D.Pa. Apr. 4.2014).

Id. at 532. Rather, a properly brought Rule 60(b) motion is one that “attack
s.

*

.

some defect in

the integrity of the federal habeas proceedings,” such as “[f]raud on the
habeas court.

.

.

.“

Id. at

532. 532 n.5. The Court gave, as an example of fraud on the court,
a witness who gave a
fraudulent reason for refusing to appear a habeas hearing. Id. at 532 n.5.
In this case, Movant argues that Rule 60(b) relief is appropriate becaus
e the Government
misled the Court. According to Movant, in the initial 2255 procee
ding, Government counsel
misrepresented the state of the law to Judge Ackerman, by misquoting,
and selectively quoting
from, the United States Sentencing Commission’s explanatory note
to Amendment 31 1—the
1990 Guidelines amendment concerning conspiracy to commit murde
r. (Movant’s Reply at 4-5.)
Movant contends that the Government “distracted and misled” Judge Ackerm
an as he considered
the application of the Guidelines to Movant’s sentence. (Id. at 6.)
Courts in and outside this circuit have found that reliance on Rule 60(b)
is appropriate in
cases of alleged prosecutorial misconduct. For example, in In re Pickar
d, 681 F.3d 1201 (10th
Cir. 2012), the Tenth Circuit held that a Rule 60(b) motion was not
a cloaked successive petition
where the movant alleged that a prosecutor made a false statement to
the movant for the purpose
of forestalling discovery. See also United States v. Pelullo, 2010 WL
2629080, at *14 (D.N.J.
June 25, 2010) (holding that use of Rule 60(b) was appropriate
where it was alleged that
prosecutor misrepresented the involvement of a federal agency).

Conversely, in Jones. the

District of Arizona held that a prosecutor’s alleged failure to disclose
exculpatory evidence could
not form the basis for a Rule 60(b) motion because the prosecutor was
not under any legal
obligation to disclose the exculpatory evidence, as

disclosures are not applicable in post

conviction proceedings. Jones v. Ryan, 2013 WL 5348294. *6 (D.Az.
Sept. 24. 2013).
Respondent argues that. despite Movant’s characterization of his motion
, it is clearly an
8

attempt to re-litigate the merits of Judge Ackerman’s Guideline applica
tion. (Resp’t Opp’n at 67.) It is true that a simple repackaging of already asserted claims
, or claims that could have been

asserted, should be treated as a successive petition. See Yuzarv v.
U.S., 2007 WL 4276864, at
*5 (S.D.N.Y. Nov. 30, 2007)
(treating Rule 60b) motion as successive petition where “all but
one of the claims brought in the instant motion have been previo
usly heard, resolved, and
appealed...

.“)

Yet, the Third Circuit has held, albeit in an unpublished decision,
that where the

merits are only indirectly implicated, reliance on Rule 60(b) may still
be appropriate. U.S. v.
Andrews, 463 F. App’x 169, 172 n. 1 (3d Cir. 2012).
In order to determine, then, whether the motion is actually a cloake
d, successive petition,
the Court must consider whether Judge Ackerman’s res judicata
ruling was a ruling “on the
merits”.

As explained above, Judge Ackerman denied habeas relief on
the ground that the

arguments had been “previously litigated and decided both by this
court and by the Court of
Appeals” and “the intervening law cited by [Movant] does not impact
the bases for this court’s
previous sentence”. (Protass Deci., Ex. 17, at 29.) Further, the
Judge ruled on the alternative
basis that he would again deny the claim on its merits if he were to
consider them. (Id. at 29-3 0.)
Language in Gonzalez provides guidance concerning whether
a

judicata ruling is “on the

merits” for purposes of Rule 60(b). In a footnote, the Supreme Court
explained:
The term “on the merits’ has multiple usages. We refer here to
a
determination that there exist or do not exist grounds entitling
a
petitioner to habeas corpus relief . . When a movant asserts one
of those ounds
theuowswasjenor) he is making a habeas corpus claim.
.

Gonzalez, 545 U.S. at 532 (emphasis added) (citation omitted). The
Court went on to note: when
a movant “merely asserts that a previous ruling jch reclude
dameritsdetcrminaiion was in
error—for example, a denial for such reasons as failure to exhaust, proced
ural default, or statute
9

of-limitations bar”, then such claims are not made “on
the merits”. Id. (emphasis added).
Drawing on this distinction, the Court concludes that
Judge Ackennan’s

judicata

ruling was a ruling on the merits. Unlike a failure
to exhaust, procedural default, or statute-oflimitations bar, Judge Ackerman’s ruling did not
preclude a merits determination. Quite the
contrary, his ruling was premised on the notion that
the merits had already been determined.
Moreover, Movant’s main argument—that Judge Acke
rman incorrectly applied the relevant
guidelines at sentencing—clearly attacks the appr
opriateness of his sentence and therefore
squarely fits within the Gonzalez Court’s definition
of “on the merits”. This reading and
application of Gonzalez is buttressed by Movant’s ackn
owledgement that he had the opportunity
to fully present his claims on the merits. In cont
6
rast, courts hearing Rule 60(b) motions in
habeas cases do so in order to ensure that a movant
has had a full opportunity to present his or
her claim on the merits. See Magwood v. Patterson,
561 U.S. 320, 345 (2010) (“[Tb determine
whether an application is ‘second or successive,’
a court must look to the substance of the claim
the application raises and decide whether the petitione
r had a full and fair opportunity to raise the
claim in the prior application.”); see also Michael
v. Wetzel, 570 F. App’x 176, 180 (3d Cir.
2014) cert. denied, 2015 WL 998637 (U.S. Mar. 9,
2015) (finding that movant raised a proper
Rule 60(b) motion because the district court neve
r reached the merits of movant’s claims);
United States
Pelullo, 2011 WL 3022534, at *14 (DN July
J.
22. 2011) (“Pelullo is not
claiming that these asserted misrepresentations prev
ented him from fairly presenting any of the
claims that he raised in his initial 2255 motion”)
.
§

Indeed. Movant argues that he has already had a
liii! opportunity to present his claims in the 2255 Petitio
n. (Mov.
Reply at 6.). This acknowledgement is critical
because, if Movant already had a full opportunity
to present his
claims on the merits, then his instant motion should
be treated as a forbidden second attempt to seek a
merit mling
on his already-presented claims,

10

As the foregoing analysis indicates, whether Movant’s
Rule 60(b) motion should be
treated as a successive petition under

§

2255, necessitates a careful analysis. After conductin
g

such a review, the Court concludes that Movant’s motion
should be treated as a successive 2255
petition. The Court will not transfer this case to the Cou
rt of Appeals for resolution, however.
because it clear from the analysis below that the claim wou
ld fail on the merits.

Robinson v.

Johnson, 313 F.3d 128, 139 (3d Cir. 2002) (“When a seco
nd or successive habeas petition is
erroneously filed in a district court without the perm
ission of a court of appeals, the district
court’s only option is to dismiss the petition or transfer it to
the court of appeals”.)
Given the conclusion that Movant’s motion is a successiv
e 2255 petition, the Court need
not address Respondent’s arguments regarding the timelines
s of the motion under Rule 60(b) &
(c). However, even if the Court were to consider the insta
nt motion proper under Rule 60(b), and
even if the Court found Movant’s motion timely under Rule
60(c), this would lead only to the
analysis set forth below and the conclusion that Movant’s
motion fails on the merits.
7
B.

Guidelines Calculation

Although the Court finds that the instant motion is
an improperly filed successive
petition, the Court shall nonetheless examine the merits of
Movant’s claim. For the reasons set
forth below, Movant’s stated grievances are unavailing and
should therefore be dismissed rather
than transferred to the court of appeals.
There are “a sequence of steps for the court to follow”
in calculating a defendant’s
sentence under the Guidelines,

3ite$t4iesv,Ano, 555 R3d 124. 127 (3d Cir, 2009);

Respondent’s remaining argument—that Movant may not
challenge Judge Ackerman’s alleged guideline
calculation errors through a § 2255 proceeding—does not affect
the Court’s decision because the Court finds that
Movant is not entitled to relief on the ultimate merits of his motion
.
11

United States v. Johnson, 155 F.3d 682, 684 (3d Cir. 1998). The first step
is to “[d)etermine the
applicable offense guideline” in Chapter Two by referring to the
Statutory Index. U.S.S.G.
8

§ § I B 1 .1(a): lB 1.2(a). At the second step, the court must “[djetermine the base offense level
and apply any appropriate specific offense characteristics”. U.S.S.G.
not dispute Judge Ackerman’s step one determination that Guideline

§ lB 1.1(b). The parties do

§ 2E1.l applies to Movant’s

RICO conviction. (See Movant’s Mot. at 37; Resp’t Opp’n at 11); IJ.S.S.
G. at p. A.15. Judge
Ackerman’s step two determination—the base offense level—is, howev
er, hotly contested.
Guideline

§ 2E 1.1 prescribes a base offense level of either 19 or “the offense level

applicable to the underlying racketeering activity.” U.S.S.G.

§ 2E1 l(a)(2). Movant argues that
.

the “underlying racketeering activity” at issue is conspiracy to commi
t murder and therefore
Guideline

§ 2A2. 1 applies, generating a base offense level of 20. (Movant’s Mot. at 37-38.)

Respondent counters that the “underlying racketeering activity”
was the murder of Vincent

Mistretta and therefore Guideline

9
§ 2Al.1 applies, generating a base offense level of 43.

(Resp’t Opp’n at 11-13; Protass Deel., Ex. 17, at 29-30.)
The key question presented by Movant’s motion becomes:
what is the relevant
“underlying racketeering activity” for the purposes of Guidel
ine

§ 2E1.1?

Guideline

§ I B 1 ,3(a)—”Relevant Conduct (Factors that Determine Guideline Range)”—states:
Unless otherwise specified. F) the base offense level where the
guideline specifies more than one base offense level
[and)
cross references in Chapter Two
shall be determined on the
.

.

.

.

‘Movant notes that “Judge Ackerman demonstrated confusion concer
ning [J the proper version of the Guidelines
Manual to use”. (Movant Mot. at 21 .), Because Movant contends that
the 1988 Revised Guidelines Manual should
be applied, the Court shall analyze Movant’s motion using that Manua
l.

Application Note 2 to Guideline § 2E 1.1 states that “[if the underl
ying conduct violates state law, the offense level
corresponding the most analogous federal offense is to be used”. There
does not seem to be any dispute at this stage
that Guideline § 2A2.i applies to conspiracy to commit murder and
that Guideline § 2A1.l applies to the murder of
rvtistretta, The key dispute, simply put. is which of those provisi
ons applies.

12

basis of the following: (1) all acts and omissions committed or
aided and abetted by the defendant or for which the defendant
would be otherwise accountable, that occurred during the
commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense, or that otherwise were in
furtherance of that offense[.]
U.S.S.G.

§ iBl.3(a). Application Note 1 to this provision makes clear that “[i]n the case of a

criminal activity undertaken in concert with others

.

.

.

the conduct for which the defendant

‘would otherwise be accountable’ also includes conduct of others in furtherance of the
execution
of the jointly-undertaken criminal activity that was reasonably foreseeable by the defend
ant.” Id.
On its face, then, Guideline

§ 1B1.3(a) allowed Judge Ackerman to consider the murder of

Mistretta as “relevant conduct” when determining if a base offense level of 19 or a higher
base
offense level should apply under Guideline
Guideline

°
1
§ 2E1.i.

However, Movant contends that

§ lB 1.3 is inapplicable when conducting a base offense level analysis under Guideline

§ 2El.l(a)(2) because: (1) § 2El.l does not contain a “cross-reference” or specify “more than
one base offense level” within the meaning of

§ lBl.3, and (2) § 2E1.1 itself “otherwise

specifi[es]” an alternative definition of relevant conduct.

(Movant’s Reply at 9-1 8.)

Accordingly, Movant argues, Mistretta’ s murder cannot be considered as “relevant conduc
t” and
therefore the applicable Guideline, pursuant to

§ 2E1 .1 (a)(2), is § 2A2. I —covering v1ovant’s

predicate RICO offense of conspiracy to commit murder. This argument is unavailing.

Every circuit to consider whether a base offense level calculation under S 2E1 .I(a)(2
)

it is immaterial under Guideline § 1B1 .3(a) whether Defendant or his co-conspirator was
actually the person
swinging the icepick that killed Mistretta. The jury found Defendant guilty of conspiracy
to commit murder as a
predicate to his RICO charge and § lB 1.3 covers “all acts.. aided and abetted by the defendant”
as well as
“conduct of others in furtherance of the execution of the jointly-undertaken criminal activity
that was reasonably
foreseeable b the defendant
U S SO
IB1 3(a) seiab,o United Stats\ Carrozza 4 F 3d 79 ‘7 (l%t Car
1993) (discussing the breadth of IB1,3 in the RICO context).
.

13

includes “relevant conduct” under

§

1BI .3(a) has rejected Movant’s arguments.

See United

States v. Bradley. 644 F.3d 1213, 1296-98 (11th Cir. 201 1): United States v.
Tocco, 200 F.3d
401, 430 (6th Cir. 2000); United States v. Rugero, 100 F.3d 284, 292 (2d Cir.
1996); United

States v. Carrozza. 4 F.3d 70, 77 (1st Cir. 1993); United States v. Masters, 978
F.2d 281, 284
(7th Cir. 1992) (Easterbrook, J.).’ The Court is persuaded by these decisions.
1
In Masters. the Seventh Circuit considered whether “relevant conduct” under
may be reviewed to determine the base offense level under

§ 2E1

.

§

lB 1.3(a)

1(a)(2). There, as here, the

defendant was convicted of racketeering and conspiracy to commit racketeering
under 18 U.S.C.

§ 1962. Masters, 978 F.2d at
conceded that Guideline

283. Advancing the same argument as Movant here, Masters

§ 2El.l applied but that, pursuant to § 2E1.1(a)(2), Guideline §

2A2.1

should be applied because the relevant “underlying racketeering activity” was
solicitation to

commit murder, not murder.

Id.

The district court disagreed, “finding that Masters ‘[was]

directly responsible for the murder of his wife,” and applied a base offense
level of 43)2

Id

Masters, like Movant, “was neither charged with nor convicted of murde
r.” Id. at 284. The
Seventh Circuit, in an opinion by Judge Easterbrook, affirmed. Judge Easterb
rook’s reasoning is
directly applicable here:
Cross-references within the guidelines introduce real-offense
principles into the charge-offense system. Section 2El.l!).
which requires the court to use “the offense level applicable to the
underlying racketeering activity”, speaks of the underlying activity

° While the Third Circuit has not considered this
exact issue in a maimer that binds the Court. our Circuit has
agreed with its sister circuits in a non-precedential opinion. $gg gjte4tates v.
Gonzalez, 401 F. App’x 727 729
(3d Cir. 2010) (Defendant’s “relevant conduct was used
to identify the pertinent ‘underlying racketeering
activity pursuant to 2E1.ls cross reference. This process is permissible.”
(citation omitted)).
.

Although the district court “calculated the sentence in three ways. each of which
produced 40 vears
imprisonment, the Seventh Circuit in Masters affirmed defendant’s sentence
on the basis of “relevant conduct”—
i.e.. murder—pursuant to Guideline * IB1.3(a) and 2F1.1(a)(2). Id. at 284.

14

and not an underlying conviction. Often there will be
no other
conviction, and the existence of one in this case does
not change
the nature of the cross-reference. Section 181 .3(a)(iii)
says that
“cross references in Chapter Two
shall be determined on the
basis of the following: (1) all acts and omissions com
mitted and
aided or abetted by the defendant
that occurred during the
commission of the offense of conviction”. The murd
er of Dianne
Masters occurred during the racketeering cons
piracy. So
§ 2E1.1(a)(2), read from the perspective of § 181.3(a). directs the
court to the murder guideline rather than the solicitatio
n guideline.
.

.

.

•

.

.

Id. at 284-85.’
The First Circuit in Carrozza employed an even more exten
sive analysis of the interaction
between Guideline

§ lB 1.3(a) and § 2E 1.1 (a)(2) to reach the same conclusion. There, defendant

Raymond Patriarca was convicted of racketeering and cons
piracy to commit racketeering under
18 U.S.C. § 1962, as well as four counts of interstate
travel in aid of racketeering (18 U.S.C.
§ 1952—the “Travel Act”) and one count of conspiring to violate the Travel Act.
Carrozza,
4 F.3d at 72. The defendant was sentenced to 97 mon
ths imprisonment and the Government
appealed, contesting the district court’s finding that
“the relevant conduct for sentencing
purposes in this RICO case is limited to just the predicate
Travel Act violations charged against
Patriarca and conduct relating directly to those char
ged predicates.”
The First Circuit
straightforwardly explained that the “RICO guideline
, § 2E 1.1, specifies more than one base

‘

Movant argues that, five years later in Zizzo, the Sevent
h Circuit “ignored Masters aid properly held—-based
on
USSG 2EL1. Application Note 2—that IBL2(a)
(choice of offense guideline), not § IBL3 (relevant conduc
§
t),
provides the governing rule for determining the ‘most
analogous federal offense.” (Movant Reply Br.
p. 1 L) Even
assuming this reading of Zizzo is correct, Movant’s conten
tion is beside the point. The Zizzo passage quoted
by
Movant was concemed with determining whether the
defendant’s state law offense (“conspiracy to intimid
ate Willis
inson
t
En I na more anslogc us to the threatening
.ommunicat1ons co\ered b 283 2 or 2 V, I United
State
v, Zizzo, 120 F.3d 1338, 1361 (7th Cir. 1997). Here,
by contrast, there is no dispute that Mistretta’s murde
r falls
under § 2A1.l and that conspiracy to murder Mistretta
falls under § 2A2.l: the issue is whether Judge Ackerman’s
finding that Defendant murdered Mistretta can be applied
under § 2El.l(a)(2). zo did nothing to abrogate
Masters in this respect. Movant’s argument with respec
t to United States v. Diaz. 176 F.3d 52. 123 (2d Cir.
1999).
fails for the same reason,

15

offense level, including a cross reference to ‘the
offense level applicable to the underlying
racketeering activity,’” and therefore
1BI .3 requires the base offense level for 2El.1
to be
§
determined on the basis of relevant conduct as that
term is described in § lBl.3(a)(l). Id. at 75.
Moreover, the court rejected the exact position taken
by Movant, saying:
“

the district court limited relevant conduct to only
those predicate
acts that were charged against Patriarca personally
—namely, the
Travel Act violations. In doing so, the district cour
t improperly
treated the term “underlying racketeering activity”
in § 2E 1.1 (a)(2)
as if it “otherwise specified” that relevant conduct shou
ld not apply
to each “offense of conviction” (including the RIC
O conspiracy
count and the substantive RICO count) and inste
ad should apply
only to the predicate Travel Act violations. This
was error.
Section 2E1 .1—specifically the term “underlyi
ng racketeering
activity”—contains no explicit instructions displacin
g the general
rule in § lBl.3 that relevant conduct includes unch
arged conduct.
In a RICO case, there is no justification for limit
ing “underlying
racketeering activity” just to predicate acts spec
ifically charged
against one defendant.
Id. at 77. The court then explicitly held that “the
term ‘underlying racketeering activity’ in
§ 2E 1.1 (a)(2) means simply any act, whether or not charged against defendant
personally, that
qualifies as a RICO predicate act under 18 U.S.
C. § 1961(1) and is otherwise relevant conduct
under lBl.3.” Id
14
Three important points bear mention with respect
to Masters and Carrozza. First, both
the First and Seventh Circuits make clear that
§ 2E 1. 1 axiomatically includes a “crossreference”, thus bringing the mention of “underlying
racketeering activity” within the purview of
§ 181.3. Masters. 978 F.2d at 28485; Carrozza, 4 R3d at 75. Second. the facts
of Masters are

Carrozza also rejected the contention that Application Notes in
Guideline § lB 1.2 limited the district court to
only
predicate acts under § 2E1.l(a)(2), explaining: while
it “is correct that for the most part. the court
will determine the
applicable guideline by looking to the charge of which
the offender was convicted, real offense princ
iples enter into
the punishment prescribed in the guidelines through
the relevant conduct guideline. lB 1.3.” ld at 80
(citations
omitted).
H

16

strikingly similar to the case at bar.

There, as here, Defendant was not convicted of the

underlying murder but of a predicate inchoate offense (in Masters, it was solicitation to commit
murder).

However, because the “cross-reference” in Guideline

§ 2E1 .1 “introduce[s] real-

offense principles into the charge-offense system”, the district judge was allowed to consider the
“real offense” of murder.

This rationale applies with equal force here: despite Movant’s

conviction for conspiracy to commit murder, Judge Ackerman properly considered the murder of
Mistretta as Movant’s “underlying racketeering activity” pursuant to
Finally, Movant’s argument that Guideline

§ 2E 1.1 ‘s cross-reference.

§ 2E1.l itself “otherwise speciflies]” a

definition of “relevant conduct” is at odds with the plain language of the Guidelines and was
flatly rejected by Carrozza. Movant contends that “Application Note 1 [to

§ 2E 1.11 states a

general rule (that the applicable Chapter 2 offense conduct section is the one applicable to the
offense(s) found by the jury to be the defendant’s ‘racketeering activity’), while Application Note 2
explains how to apply that rule when the charged and convicted ‘act of racketeering’ is a state law
violation”. (Movant’ s Reply at 14-15.) However, the language of Application Note 1 does not
explicitly limit “underlying racketeering activity” to only “the offense(s) found by the jury to be the
defendant’s ‘racketeering activity”. Indeed, as Judge Easterbrook recognized in Masters, “[ojfien
there will be no other conviction” aside from the substantive RICO charge; under Movant’s
reading, Application Note 1 would provide no guidance to district judges regarding “relevant
conduct” in such cases. In stark contrast, Guidelines that seek to “otherwise specify” within the
meaning of IBL3 do so with explicit language. ççeg. jte$tates v. Ces çdes, 663 F.3d
685. 689 3d Cir. 2011) (holding that Guideline

§ 3C1 .2 “otherwise specif[ies]” relevant

conduct): United States v. Lovaas. 24l F.3d 900. 904 (7th Cir. 2001) (holding that Guideline

§ 2G2.2 “otherwise specitlies)” relevant conduct);

991 F.2d 725, 734
17

(11th Cir. 1993) (holding that Guideline

§ 2A2.4 “otherwise speciflies]” relevant conduct) As

the First Circuit succinctly explained, ‘Sec
tion 2El.1—specifically the term ‘underlying
racketeering activity’—contains no explicit instr
uctions displacing the general rule in I B 1.3
§
that relevant conduct includes uncharged conduct.”
Carrozza, 4 F.3d at 77.
As set forth above, the plain language of

§ 2E I .1 and § lB 1.3, as well as the

overwhelming weight of persuasive authority, com
pel the conclusion that Mistretta’ s murder can
be considered under § 2El.l(a)(2). Accordingly,
Judge Ackerman properly calculated Movant’s
sentence and the Court dismisses Movant’s case.

18

_____________________________

IV.

CONCLUSION

The Court finds that the instant motion is an impermis
sible successive 2255 petition and,
therefore, may only dismiss the motion or trans
fer it to the Third Circuit for that court’s
consideration. However, because Movant’s moti
on also fails on the merits, the Court dismisses
Movant’s case and, to the extent one is required.
no certificate of appealability shall issue. An
appropriate Order follows this Opinion.

DATE: March31, 2015
CLAIRE C. CECCHI, U.S.D.J.

19