United States v. Fiume
2013 U.S. App. LEXIS 3777
1st Cir.2013Background
- Defendant Jason P. Fiume was convicted in New York of assaulting his wife and subject to a protection order through 2015.
- Despite the order, Fiume tried to communicate with Megan via calls, email, texts, mail, and Facebook, and posted a message on a tree in Maine.
- A federal indictment charged him with violating 18 U.S.C. § 2262(a)(1), (b)(5) for interstate travel with intent to violate the protection order.
- The presentence report recommended a base offense level of 18 under USSG § 2A6.2(a), plus a two-level enhancement for violation of a protection order, a two-level enhancement for stalking pattern, and a three-level acceptance of responsibility reduction.
- These calculations, along with criminal history category II, yielded a guideline sentencing range of 33-41 months.
- At sentencing, the district court adopted the PSI calculations and imposed a top-of-the-range sentence of 41 months, and Fiume appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2A6.2(b)(1)(A) double counts the same conduct as § 2A6.2(a). | Fiume contends the 2-level upgrade for violating a protection order duplicates an element already in the offense. | Fiume argues the enhancement impermissibly double counts the same facts. | Not impermissible double counting; enhancement warranted and proper. |
| Does the sentence violate Double Jeopardy by punishing the same crime twice? | Fiume asserts double punishment for the same offense. | Fiume argues double jeopardy applies to the sentencing scheme. | Plain error review finds no double jeopardy violation; only a single offense and sentence were imposed. |
Key Cases Cited
- United States v. Lilly, 13 F.3d 15 (1st Cir. 1994) (multiple uses of a single fact may be proper when addressing discrete sentencing concerns)
- United States v. Zapata, 1 F.3d 46 (1st Cir. 1993) (double counting concept distinguished from permissible multiple use)
- United States v. Leahy, 668 F.3d 18 (1st Cir. 2012) (de novo review of guideline interpretations on preserved error)
- United States v. Pho, 433 F.3d 53 (1st Cir. 2006) (standard for reviewing guideline applications on appeal)
- United States v. Newman, 982 F.2d 665 (1st Cir. 1992) (discusses rational structure of offense guideline adjustments)
- United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (permissible use of underlying facts for multiple sentencing considerations)