United States v. Pizzolato
2011 U.S. App. LEXIS 18806
5th Cir.2011Background
- Pizzolato pleaded guilty to 21 counts of mail fraud, 1 count of wire fraud, 3 counts of money laundering, 1 count of securities fraud, and 1 count of witness tampering in a Ponzi scheme defrauding over 180 investors of $19.5 million.
- Plea under Rule 11(c)(1)(B) recommended a Guidelines range of 151–188 months; the Government agreed this range and concurrent sentencing, plus acceptance‑of‑responsibility reduction.
- The district court imposed 360 months (consecutive sentences totaling the statutory maximum) despite the plea recommendation.
- Pizzolato objected that the Government breached the plea by arguing for a sentence above the agreed range and by presenting facts not within the plea calculation.
- PSR proposed upward departure/variance due to non‑monetary harms and victim impact; district court contemplated departure/variance but ultimately departed upward.
- Court allowed victims’ testimony and other evidence, and independently decided to depart from the Guidelines, imposing the statutory maximum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Government breach the plea agreement by arguing for a longer sentence? | Pizzolato | Pizzolato | No breach; the Government complied with 11(c)(1)(B) and supported but did not bind to a specific sentence. |
| Did the district court abuse its discretion in departing upward from the Guidelines? | Pizzolato | Pizzolato | No abuse; court independently determined an upward departure based on severity and impact of fraud. |
| Was appeal waiver enforceable to bar review of sentence? | Pizzolato | Pizzolato | Waiver applied; appellate challenge to the sentence fell within the waiver and was barred. |
| Did Government’s sentencing response violate the plea or misstate the range? | Pizzolato | Pizzolato | No; response corrected mischaracterizations and stayed within the plea range while maintaining stance. |
Key Cases Cited
- Elashyi v. United States, 554 F.3d 480 (5th Cir.2008) (breach of plea agreement determined by reasonable understanding of terms)
- Roberts v. United States, 624 F.3d 241 (5th Cir.2010) (strict adherence to plea agreements required; preponderance standard for breach)
- Gall v. United States, 552 U.S. 38 (S.Ct.2007) (Guidelines are advisory; must consider them in sentencing)
- Munoz v. United States, 408 F.3d 222 (5th Cir.2005) (prosecutor improper advocacy for guideline not included in plea is breach)
- Saling v. United States, 205 F.3d 764 (5th Cir.2000) (prosecutor’s duty to inform court of all factual information relevant to sentence)
- Avery v. United States, 621 F.2d 214 (5th Cir.1980) (prosecutor cannot withhold relevant information from court)