United States v. Lamar Bertucci
2015 U.S. App. LEXIS 12672
| 8th Cir. | 2015Background
- Lamar Bertucci pleaded guilty to shooting and killing a bald eagle and a rough‑legged hawk in violation of federal wildlife statutes.
- The PSR assigned offense level 10 and a criminal history score of 2, and applied a four‑level enhancement under U.S.S.G. §§ 2Q2.1(b)(3)(A)(ii) and 2B1.1(b)(1)(C) based on a combined "market value" > $10,000 (eagle $10,000; hawk $1,750).
- The PSR also included a two‑level pattern enhancement and multiple paragraphs recounting prior alleged assaults (many dismissed); Bertucci objected to the valuations and the assault allegations.
- At sentencing the district court denied objections, imposed 8 months’ imprisonment, one year supervised release with a special condition requiring anger‑management counseling, and a $6,500 "financial obligation" ($5,000 eagle; $1,500 hawk).
- On appeal the Eighth Circuit vacated and remanded: it found the valuation evidence unreliable for applying the market‑value enhancement, concluded the $6,500 was oral restitution (which the court lacked statutory authority to order), and held the record insufficient to support the anger‑management condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Valuation for Guidelines enhancement | PSR valuation ($10,000 eagle; $1,750 hawk) is unsupported; prior cases used much lower values | Government relied on expert affidavit (Clark) to justify higher replacement costs | Court: Clark's affidavit unreliable and not sufficiently supported; vacate sentence and remand on valuation issue |
| $6,500 "financial obligation": restitution vs fine | Government/record reflect court intended restitution for loss of birds | Bertucci argued court lacked authority to order restitution for these statutes; alternatively a fine would be permissible | Court: Oral pronouncement and context show intent to order restitution (not a fine); district court lacked statutory authority to order restitution for these offenses; vacated and remanded |
| Anger‑management counseling special condition | Government relied on PSR paragraphs (arrests, past classes) to justify counseling | Bertucci argued allegations were dismissed or unproven; past classes do not show present need | Court: PSR paragraphs were unproven allegations and prior class attendance was insufficient; special condition vacated |
| Scope of remand / evidence the government may present | Government urged deference and suggested plain‑error review | Bertucci sought plenary review of errors and relief | Court: Remand for resentencing; government limited to the existing record in accordance with prior notice; government may present only evidence already in record |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (review of sentencing reasonableness)
- United States v. Boston, 494 F.3d 660 (8th Cir. 2007) (abuse of discretion standard for supervised‑release conditions)
- United States v. Olson, 716 F.3d 1052 (8th Cir. 2013) (oral sentence controls where conflict with written judgment)
- United States v. Buck, 661 F.3d 364 (8th Cir.) (resolve ambiguity in sentence by examining full pronouncement)
- United States v. Mayo, 642 F.3d 628 (8th Cir.) (oral sentence controls over written judgment)
- United States v. Gammage, 580 F.3d 777 (8th Cir.) (indictment/PSR allegations are not evidence)
- United States v. Andis, 333 F.3d 886 (8th Cir.) (standard for special conditions of supervised release)