United States v. Philip Rossi
422 F. App'x 425
6th Cir.2011Background
- Rossi pleaded guilty to one count of mail fraud for a $3.5 million scheme involving about forty clients who Rossi allegedly diverted for personal use.
- Rossi was an investment adviser who operated Rossi & Associates and Patterson-Ross Financial Resources; the scheme operated from 2000 through September 2008.
- He mailed falsified account statements and other communications to victims and used misrepresentations to justify withdrawals or delays.
- Indicted November 19, 2008; bond was revoked after Rossi allegedly contacted a victim; Rossi pled guilty on April 16, 2009 under a Rule 11(c)(1) agreement.
- The PSR set a Guidelines range of 63–78 months (total offense level 26, loss >$2.5 million, >10 victims, abuse of trust) with a history category I; the district court imposed a 144-month variance and restitution of about $3.53 million.
- Rossi challenged the sentence on procedural and substantive grounds, arguing lack of notice for the variance, disproportionality, and inadequacy of the court’s rationale.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the variance from the Guidelines required notice under Rule 32 | Rossi contends Rule 32(i)/Burns/Irizarry require pre- or clear notice before a non-Guidelines variance. | District court properly allowed objection and comment; no categorical notice is required for variances after Booker. | No categorical notice required; due process not violated; meaningful opportunity to respond was provided. |
| Whether the sentence used an impermissible disparity analysis | Rossi claims the above-Guidelines sentence is an unjust disparity compared to similar conduct. | Court can consider § 3553(a)(6) but national disparity need not be proven; variance justified by case facts. | District court's variance not procedurally or substantively unreasonable; no reversible error shown. |
| Whether the total-loss figure/criminal history used to justify variance was duplicative | Loss amount and prior history were already reflected in the Guidelines and should not influence variance. | Loss and history inform § 3553(a) factors and can justify variance even if reflected in Guidelines. | These factors are properly considered under § 3553(a); not an error to rely on them to justify variance. |
| Whether the court adequately explained the reasons for the upward variance | Rossi claims insufficient explanation of the six-level variance. | The sentencing hearing plus the written three-page memorandum provided adequate justification. | Explanation adequate; no requirement of mechanical recitation of factors. |
Key Cases Cited
- Burns v. United States, 501 U.S. 129 (Supreme Court, 1991) (upward departures require notice when grounds exist for departure)
- Irizarry v. United States, 553 U.S. 708 (Supreme Court, 2008) (notice not required for variances; due process considerations reframed post-Booker)
- Gall v. United States, 552 U.S. 38 (Supreme Court, 2007) (reasonableness review of sentences outside the Guidelines range)
- Rita v. United States, 551 U.S. 338 (Supreme Court, 2007) (clarified use of advisory Guidelines and reasonableness analysis)
- Garcia-Robles v. United States, 562 F.3d 763 (6th Cir., 2009) (adequacy of district court's explanation and opportunity to respond to sentencing rationale)
- Gunter v. United States, 620 F.3d 642 (6th Cir., 2010) (nonfrivolous-arguments requirement in § 3553(a) analysis; response to issues)
- Lanning v. United States, 633 F.3d 469 (6th Cir., 2011) (recognizes § 3553(a) factors may justify variance and that guidelines provide starting point)