*1 parture general rule, from the involving
unusual facts present not here.8
VII.
The district court subject had jur- matter
isdiction in By this case. participating in a
bench trial objection, without the dockown-
er any right waived might it have had to a
jury trial. None of the district court’s find-
ings of clearly fact was erroneous. How- ever, it misapplied the in failing law shipowners
award the full indemnity in-
cluding attorneys’ for defending fees
against Cooper’s claims prejudgment
interest from the date of the settlement.
Accordingly, we will reverse judgment
of the district court and remand this case
to the district court entry for the of a
judgment opinion. consistent with this
UNITED STATES America ASTORRI, Appellant.
Dennis L.
No. 90-3277.
United States Court Appeals,
Third Circuit.
Argued Aug. 1990.
Decided Jan. 8. Burris Gilchrist found limitation fees to be followed similarly have Gilchrist involved ex- extraordinary of "the result ceptional required circumstances circumstances which of that case”—in which there had been 'equitable courts to create an modification of delays separate proceedings and entire on fees— the normal rule F.2d indemnification.’" 505 and noted that "[t]he cases which have at 1176. *2 Wilming- (argued), Radulski
Raymond M. ton, Del., appellant. for (argued), Office Andrews G. Richard Del., appellee. Wilmington, Atty., U.S. HUTCHINSON, NYGAARD' Before ROSENN, Judges. Circuit THE COURT OF OPINION NYGAARD, Judge. Circuit guilty pleaded Astorri Dennis Appellant one count fraud and wire count of one im- court The district tax evasion. income terms 54-month two concurrent posed to make and ordered imprisonment $361,317.77. the amount restitution in the district claims appeal, Astorri On Sentenc- States misapplied the United agree Although we with ing Guidelines. we disposition, court’s district much as- resentencing as remand for will pect of the sentence discussed below in personal into his bank accounts. Some of part V. invested, this money was but most Astorri spent. To making payments avoid to his
I. investors, and to up scheme, cover his he *3 persuaded Dennis Astorri the was a victims to stockbroker reinvest their who lived extravagantly. “profits.” He expen- rented an apartment, sive leased a Porsche automo- charged Astorri was with a number of bile, totally supported girlfriend, his and crimes, but in pleas return for guilty his of used frequently. cocaine living His habits to one fraud, count of wire 18 U.S.C. supported were not by enterprise honest 1343, and one count of income § tax eva- by but a fraudulent stockbrokerage sion, 26 government U.S.C. § scheme. promised Astorri tremendous re- dropped charges fraud, of mail 18 U.S.C. gullible turns to pocketed investors and 1341; failure to file returns, income tax § their money. investment He defrauded 7203; 26 U.S.C. perjury, 18 U.S.C. individuals, twelve including girlfriend’s his 1623; fraud, 18 U.S.C. parents, John and Kronyak. Elvira The Astorri, When sentencing the district court Kronyaks lost savings $119,- their life of made the following upward adjustments to 311. They by taking invested a second Astorri’s (1) base offense level of six: sev- mortgage their on home. To pay off the en levels for the amounts money of in- second mortgage, Kronyak, Mr. an electri- fraud; (2) volved in the levels two because cian, will be forego planned forced to his person more than defrauded; (3) early retirement and long possi- work as as two victims; levels for (4) vulnerable two ble. Astorri’s other victims fared no bet- levels using for a special stockbroker’s skill ter. perpetrate scheme; to (5) his two levels for $48,000 Mark lost McCurnin he received Astorri’s income conviction; tax (6) evasion in settlement for an injury he sustained. two levels for more than minimal planning; Melvin and $1,800, Linda Brown lost saved (7) two levels for the psycho- for their George children’s education. and logical injury upon inflicted Astorri’s vic- Taylor, Grace poor health, retirees in lost tims. The district court credited Astorri $160,000. They raised their investment by with a adjustment downward of two levels selling stock, cashing $35,000 inherited a accepting responsibility. The total of- deposit, certificate of and withdrawing fense by level calculated the district court $10,000 from an individual retirement ac- was twenty-three, which guide- creates a Taylors count. The mortgaged their house sentencing range line of between 46 and 57 just pay to income taxes on the stock they months. sold. Lynn $7,200 and David Ross lost which II.
represented large part a their of life sav- ings. issue Joseph Needles, first us Audrey before is whether both nearly sixty, $15,000, Fed.R.Crim.P. 32 entitled lost Astorri to by ad raised selling vance notice that the Moscarelli, stock. court might Vincent district self-employed a make sentencing adjustments. $18,000 horse trainer who earns As torri year, argues he must given be an $9,500. opportuni lost life his ty prepare to for the sentencing hearing. Astorri by executed his getting scheme We conclude that Rule 32 does not entitle customers invest in the stock or bond Astorri to advance notice. through market stockbrokerage, his First Securities America. Initially, 32(a)(1) Astorri Rule provides, pertinent part: would legitimately his invest victims’ sentencing “At the hearing, the court shall funds. period, After a short he would in- afford counsel ... an opportunity to com- form them great opportuni- investment ment probation officer’s determi- ty with an attractive rate of return. Astor- nation and other relating on matters to the ri deposit would then his investors’ money appropriate sentence.” Fed.R.Crim.P.
1055 Rule, pur- inherently involve factual deter conduct” 32(a)(1). According to hearing provide is to sentencing determinations are made pose of a minations. Such with the defendant an government by sentencing judge who has the best help evidence to present opportunity to opportunity see the defendant and the decide, among things, other wheth- court to Mejia-Orosco, victims. United States adjust levels. it will offense how er and (5th denied, Cir.), cert. procedural re- met The district — U.S.-, 106 L.Ed.2d S.Ct. affording Rule 32 quirements (1989). the district court’s We review objections to voice his opportunity an after clear findings factual this context for applicable, 3A1.1 but be- it found 3742(e). error. 18 U.S.C. § making upward adjustment. an fore *4 We find the district court did not err opportunity to be gave Astorri an court The applying when section 3A1.1. district requires. all Rule 32 See heard. That is findings Astorri’s victims court made that Cervantes, States United grounds: vulnerable on two the inves- were (2d Cir.1989); States v. United 56 cf. sophistication; ages tors’ and lack of (D.C.Cir.), Burns, cert. F.2d 1348 — U.S.-, girlfriend’s of his 111 Astorri’s victimization 110 S.Ct. granted, (“Since (1990) parents. the defendant Since we decide the district court L.Ed.2d the court to address opportunity correctly applied had an section 3A1.1 based sentencing during his allocution exploited girlfriend’s before way Astorri his sentence, appeal his he has right a has Kronyaks, need not decide parents, the we lack of by the trial court’s not been harmed the district enhancement whether court’s notice.”). ages The the victims’ was correct. for relationship that district court found III. Astorri, girlfriend his and the between Next, if the district must decide Kronyaks we unusual- Kronyaks, rendered the making a two-level by erred persistent re- ly susceptible to Astorri’s Astorri’s grounds that adjustment on investment funds. Astorri quests for more 3A1.1 were vulnerable. U.S.S.G. victims § promise marry went so far as to even provides: get in order to Kronyaks’ daughter have knew or should If the defendant It was not money from them. additional the offense was the victim of known that of the close to find that because erroneous age, physical due to unusually vulnerable girl- relationship Astorri and his between condition, that the victim mental friend, vulnerable and parents were her susceptible to the crimi- particularly susceptible” to his fraudulent “particularly conduct, by 2 levels. increase nal finding provides That scheme. investment 3A1.1. U.S.S.G. Astorri’s of- to enhance a sufficient basis section 3A1.1. level under fense provides: Application Note relevant The applies to offenses adjustment This unusually victim is vulnerable where an IV. activity by target criminal a made apply, adjustment would The defendant. the dis next issue is whether fraud case where the example, in a enhancing Astorri’s by court erred trict cancer an ineffective marketed defendant tax evasion con level for his offense base robbery the defendant where cure or a grounds gave The court alternate viction. it victim. But handicapped selected First, the level enhancement. for its two in the case where apply would not wire fraud if Astorri’s court concluded by securities fraudulent sold defendant grouped are convictions tax evasion one of the public and general mail to the 3D1.2, spe then the section together.under to be senile. happened victims of the tax eva characteristic cific offense Note 1. 3A1.1, Application
U.S.S.G. § the offense would increase sion offense taxes evaded level two because Questions victim of whether ac- by a criminal money generated due on criminal to ... “particularly susceptible tivity. alternative, In the the district court offense level relating is 17 to the fraud reasoned that if the two offenses were not Appellant’s count.” Brief at 20. Astorri grouped together they because involved points out that the combined offense level victims, different the court could none- guideline, 3D1.4, U.S.S.G. is not applica- theless enhance the fraud conviction base ble since it to multiple refers groups and offense level under 3D1.4(a). section his convictions constitute group. Therefore, he concludes that the district Exercising plenary review of the district court may not apply a two level increase court’s construction application under that section.1 guidelines, 18 3742(e), U.S.C. we will af- firm the district court’s alternative en- 3D1.2(c) targets Section “conduct” em- hancement 3D1.4(a). under section Our bodied in one count that is treated as a analysis begins nonetheless with section “specific offense characteristic” in another 3D1.2: count. “specific offense characteris- All involving counts substantially tic” at issue here refers to the tax evasion same harm shall grouped together be count, 2T1.1(b)(1). That section single into a group.... Counts involve provides for a two level increase where:
fense conduct that is treated as a specific of- ment (c) When one of the counts embodies substantially the same harm within the and the same act or transaction. (a) When counts *5 meaning of this rule: [*] to, characteristic the sis guideline [*] involve in, or [*] applicable to an- the other same victim [*] adjust- [*] U.S.S.G. § income. (B) the offense concealed or furthered dant derived a criminal activity from which the defen- activity, or exceeding (A) the defendant 2T1.1(b)(1). $10,000 substantial failed to per year from criminal portion report income of his other of the counts. Neither of specific these offense character- istics constitutes conduct embodied in the U.S.S.G. 3D1.2 (emphasis supplied). fraud government count. The did not have 3D1.2(a), Under subsection the tax eva- prove to that Astorri engaged in tax eva- sion and fraud counts did not involve the sion to convict Further, him of fraud. the same victims. While the private various fraud sentencing guideline does not ad- investors suffered the harm of Astorri’s dress concealment of criminal activity or a stockbrokerage scheme, fraudulent Astor- failure report criminally-derived income. ri’s tax targeted evasion government. the See U.S.S.G. 2F1.1. Thus, grouping 3D1.2(a) under section is inappropriate. Our distinction between the fraud and tax evasion supported counts is by the 3D1.2(c), As for subsection Astorri ar- background commentary to the tax evasion gues the fraud count embodies conduct offense: specific treated as a offense characteristic under and, the tax evasion offense there- report Failure to criminally-derived in- fore, 3D1.2(c)requires grouping the come is included as a factor for deter- counts. Applying two the rules of section purposes. rence Criminally-derived in- 3D1.3, Astorri highest that “the concludes generally come is establish, difficult to analysis depends upon supplemen- 1. Astorri's $10,000 report exceeding failed to per income given by sentencing tal illustration year commis- activity, from criminal or if the offense sion. concealed activity or furthered criminal from which the defendant derived a Example C.6. The substantial defendant convicted of portion of his income. If either of these one count of theft char- count of income applies, evading grouped acteristics tax evasion for counts are taxes on the income to- otherwise, gether 3D1.2(c); they obtained under § theft. are Proper depends grouping specific not. on the facts. guideline The tax specific supplemental evasion contains a The Commission’s illustration 2T1.1(b)(1), offense characteristic § that in- does not bind us nor do we necessary find it creases the analysis. offense level if the defendant our 2F1.1(b)(2). commentary in such cases will to that sec- so that the tax loss substantially says: understated. tion tend to be Empirical Commentary, analyses practices U.S.S.G. of current
Background important 2T1.1. show that the most factors length that determine sentence are Thus, specific included this the Commission amount of offense loss whether the evasion. to deter tax offense characteristic sophisticated is an isolated crime or is or offense characteris- specific include this To repeated. negates in the fraud count tic as “conduct” its guideline. We conclude together under section counts that is treat applying section counts less serious.” fense level. resented the this instructs [c]ount fore, evasion rectly added two units or fraud offense calculation. Group separate case, under section them as with the equally serious or from Since the may were one additional at an offense us to the fraud inclusion within not The court quite properly not group with the two (emphasis highest “[cjount be 3D1.4. Section fraud and tax evasion 3D1.4(a), separate count, grouped Unit for each level of 15. There 3D1.2(c). offense level *6 computed the tax as one Unit at level the tax evasion the court levels to the groups when original). together, 1 to highest the two grouped 3D1.4(a) Group levels [and] rep cor we of In Background ment factor repetition advises the complexity The extent scheme planned factor is pact, especially practice, this factor has a tial to do considerable harm. fies pendent are indicative of an intention and losses. assessing 2F1.1 sfc dangerousness (emphasis supplied). 2-/evel enhancement when (more Accordingly, (more present. [*] its sentencing represented by section 2F1.1 repeated sophisticated potential Commentary, than one than minimal actual harm. A in frauds [*] which incidents of fraud court to look H" harmfulness victim) an offense is guideline speci- involving offender, significant im- important planning) [*] In current U.S.S.G., enhance- complex as poten- small signs [*] inde- this If either characteristic potential harm. of V. commentary apply present, the tells us is is whether the dis The next issue commentary a two level increase. increasing by erred Astorri’s trict court a four level enhancement does not indicate under section conviction four levels fraud present. harm are A signs both where 2F1.1(b)(2). reviewing the we are Since rather than a four level increase two application and construction district court’s where, section 2F1.1 because proper under guidelines, standard of review is the our here, defrauds more than as a defendant 3742(e). We con plenary. 18 U.S.C. § victim, involve the will often one scheme have been that the increase should clude planning, than minimal and vice-ver- more limited to two levels. sa. sentencing,2 2F1.- time of section At the holding support finds from other Our 1(b)(2)read: appeals. v. Ira courts of United States (A) (2) more than If the offense involved Cir.1990)(offense 554, (2d bor, 894 F.2d 556 (B) planning, or a scheme to minimal by points for “more increased two level victim, 2 increase more than one defraud planning and more than than minimal 1989.) 1, (Effective November levels. Bolden, victim”); 889 v. United States Cir.1989)(offenses in 1336, (4th 1339 increase when F.2d a four level Imposing planning,” minimal volving “more than more than planning minimal more than one vic more than crime a “scheme to defraud present in a are both one victim only points.) also raised level two See tim” the intent would undermine Cir.1990). 74, (3d Astorri 77 n. 6 apply guidelines at the time of F.2d We in effect the 2. 23, Cianscewski, April on sentencing. v. 894 sentenced States United Campbell, United 878 F.2d States Since the district court followed a Cir.1989)(The (5th district court added departure approved by Sentencing the points because the offense involved two Commission and challenges only planning minimal more than and was aimed the district court’s findings, factual we re at more than one victim. The Court of view for clear error. 18 'U.S.C. Appeals vacated and remanded for “ex- 3742(e). United States v. Ryan, 866 departure” treme from the recommended (3d Cir.1989) (“We conclude, F.2d guideline sentence expressly ap- without light general language of the proving rejecting the court’s conclusion guidelines indicating if 2F1.1(b)(2).) under section But see United authorized, the district courts are entitled (8th v. Reyes, States 289-90 to exercise a substantial amount of discre Cir.1990) (Offense level raised four determining tion in depart whether to points for more than one victim and more ”). guidelines the ... Hence, planning.) than minimal we will The district applied its extreme remand to the district court for resentenc- psychological injury by stating: increase ing. case,
The factors in this which I think significant, are are elderly VI. victims subject who were of this scheme to Under section 5K2.3 of the Guide defraud, those who had life sto- lines, applied the district court a two-level including Kronyaks, len Taylors, grounds increase on the that Astorri inflict the Rosses and the Needles and those ed psychological injury on his vic family whose home was forced to be sold provides: tims. Section 5K2.3 fraud, as a result of Kronyaks. this If a victim or psycholog- victims suffered plans Those whose retirement were injury ical much more serious than that ruined, Needles, Taylors and the normally resulting from commission of Kronyaks. Those whose children’s edu- offense, may the court increase the lost, cation fund was the Browns. Those guideline sentence above the authorized family relationships whose imposed were range. The extent of the increase ordi- upon, here Kronyaks it’s the narily should depend severity on the *7 Browns. Those who have suffered actu- the psychological injury and the extent to physical psychological and al health ef- injury which the intended or was know- fects, Taylors and the Needles. And ingly risked. my observation at the civil trial of Normally, psychological injury would be this matter also the Kronyaks. sufficiently application severe to warrant adjustment only of this when there is a I have seen their reaction and the dev- impairment substantial of the intellectu- astation which this scheme to defraud al, emotional, psychological, or behavior- upon has inflicted them. I read Mr. Neu- victim, al functioning of a when im- berger’s concerning letter the situation pairment likely is to be of an extended or Taylors; of the psychologi- the extreme duration, and the im- continuous when cal effect that this scheme and the loss pairment by physical manifests itself upon of their life had them. psychological by symptoms changes in my It is conclusion that this section for patterns. behavior con- The court should should be considered. sider the extent harm to which such App. at 19-20. likely, given the nature of defen- dant’s conduct. findings These are not erroneous. If there any place sentencing guidelines contends in analy- that the district court erred because there in sis where a fact-finder is to given was “no evidence be con- deference, any record that suffered siderable it is victims here where the any psychological injuries as district upon a result of court is called to assess Appellant’s offense.” Brief psychological impact upon at 26. victims. judgment of sentence findings we must vacate the court based its The district supplied by resentencing the record remand this case for be- and evidence both The district incorrectly in- its own observations. cause the district court the of guideline to the seriousness court looked creased Astorri’s sentence well-being upon the impact its fense and than four levels rather two under section that these cir and found Astorri’s victims 2F1.1(b)(2). holdWe that a scheme to de- upward depar an warranted cumstances requires fraud more than one victim which 5K2.3, psycho According to section ture. planning may only than minimal re- more normally found where injury is logical point in base offense level in- sult a two impairment substantial there is a chronic 2F1.1. crease under U.S.S.G. § in functioning resulting mental a victim’s symp psychological or behavioral physical, HUTCHINSON, Judge, Circuit Taylors and the toms. Both the Needles dissenting concurring part part. in in under this psychological injury suffered life The Needles lost their sav from the respectfully dissent Court’s definition. I suffering continue indef ings opinion, their will explained in Part VI of its holding, forced to Mrs. Needles has been initely. court’s two-level increase that the district as a high pressure blood treatment for seek guidelines sentence offense lev- in Astorri’s continues Astorri’s scheme. She result of some of the victims proper because el was Taylors doctor’s care. to be under a psychologi- “extreme fraud suffered of his inheri savings and an their life also lost in injury” as that term is defined Guide- cal dealings. Astorri’s fraudulent tance from Therefore, I would instruct lines 5K2.3. Taylor, Mr. reveals that Record evidence court on remand to resentence the district health, adverse displayed already poor by reducing guidelines Astorri under those effects from and behavioral physical an additional two levels. his offense level dealings. opinion respects join I In all other the Court. the district court’s supports evidence suffered victims findings that Astorri’s of a approval I from the Court’s dissent injury than that psychological more much under 5K2.3 for three two level increase commission of normally resulting from the First, I that the district reasons. believe any vic- Where fraud offense. a wire finding that some of Astorri’s vic- court’s impairment, depar- tim suffers substantial inju- psychological “extreme tims suffered Here, 5K2.3. under section justified ture is term is defined Guidelines ry” as that Taylor suf- Mr. Mrs. Needles and at least Second, I clearly erroneous. 5K2.3 Thus, injury. psychological fered extreme district court the reasons the believe findings sup- are section 5K2.3 the court’s level increasing Astorri’s offense gave for consequently by the evidence ported injury to psychological by two for *8 erroneous. are not that the district his victims show some of the relation Guide- misunderstands court VII. in- psychological on extreme lines 5K2.3 § CONCLUSION relating to in- 3A1.1 jury to Guidelines § especially vulner- victims are creases where court cor- that the district conclude We and relating of trust able, to abuse 3B1.3 § un- offense level Astorri’s rectly enhanced 2Fl.l(b)(l)(H) relating to amount of mon- §‘ adjustment, victim” “vulnerable der the dis- Finally, that the I believe etary loss. 3A1.1, a correctly applied and U.S.S.G. § severity of the on the court’s reliance trict inflicting departure for upward two level suf- victims some of Astorri’s loss economic injury” under sec- psychological “extreme cir- age, financial of their fered because that conclude the also tion 5K2.3. We between or the relation cumstance evasion and the tax properly treated adequately family are all fiancee’s and his adding “groups,” separate counts as fraud men- guidelines sections in the dealt with convic- evasion for tax levels Astorri’s two Nevertheless, tioned. 3D1.4(a). tion under departure A justi- pact under 5K2.3 is not loss of their lives’ § and one fied when the harm to a convict’s family’s victims plans home had on their for retire- and the adequate- nature his conduct are ment or their children’s education. ly guidelines. considered in other See The district court’s conclusion that the 3553(b) (West U.S.C.A. Supp.1990); § Kronyaks, Taylors, the Rosses and the (“Where appli- Guidelines 5K2.0 ... § psychological Needles suffered extreme in- guideline adjustments cable offense do jury largely upon is based its own observa- take into consideration factor in listed tion of their reaction to their situation and subpart, departure this from applicable the “devastation which this scheme to de- guideline range is only warranted if the fraud Appendix has inflicted them.” present factor to degree substantially is (App.) expert at 20. It had before it no in excess of that which ordinarily is in- support medical evidence finding to its that offense.”); volved in the United States v. they physical psycho- suffered “actual Uca, 783, (3d Cir.1989). 786-87 effects,” logical 20, App. health see at man- sentencing Determinate guide- under the “physical psychological ifested in symp- or requires separation lines of the factors for by changes patterns” toms or in behavior departures consideration from those al- substantially impaired their “intellec- ready taken into consideration elsewhere in tual, emotional, psychological, or behavior- guidelines. functioning.” al See Guidelines 5K2.3. points With these in mind I turn to a observations, Besides only its own consideration of the circumstances under evidence the district court referred to in guidelines permit which the upward an de- support of its conclusion that some of As- parture psychological for “extreme suffer- torri’s victims had physi- suffered “actual ing.” 5K2.3, quoted Guidelines by the psychological effects,” cal and health see Court, typescript permits at an App. at are taken from two letters and psychological suffering only portions pre-sentence report. psychological a victim ... suffered “[i]f attorney, first letter is from an Thomas injury much more normally serious than Neuberger. Taylor’s He states that Mr. resulting commission of the of- good health has not been and the entire fense_” added). (emphasis involving ordeal Astorri has been the goes say 5K2.3 on great
Section that this source aof deal of stress that on severity normally “only level of Taylor reached occasion weep caused Mr. when impairment when there is a substantial Neuberger’s presence. he was in Mr. See intellectual, emotional, psychological, App. However, or at 70. a letter that Mr. functioning victim, behavioral Taylor of a when himself submitted makes it clear impairment likely to be of an extend- problems that the health referred to in Mr. duration, ed or continuous the Neuberger’s when letter presen- as well as in the impairment by physical manifests itself report tence developed had either before psychological symptoms by changes in Astorri’s place scheme took or were un- patterns.” behavior related App. to that scheme. at See Taylor evidence that the district court Mr. had a heart attack in Decem- ber, 1983, to in support referred of its decision to open surgery heart April, increase Astorri’s offense level un- two but this was before Astorri’s scheme June, 1986, der Guidelines 5K2.3 was own began. its obser- In lumps cancerous *9 vations, lay opinions chest, some the vic- Taylor’s about were removed from Mr. and problems, December, age tims’ medical in surgery advanced he had to re- of some gall victims and the severe im- move his bladder. There is no reliable any departure respect Because I findings do not believe was even with to the district court's fact, appropriate, agree I any do not reach or consider the issue I cannot with the Court that particular departure particular of whether this was reason- deference is due because of the na- Simply put, scope able. I regard believe our of review ture of Guidelines 5K2.3. Without § to plenary. particular guideline, on this record is See United States v. the expressed the deference due is Uca, (3d Cir.1989). Moreover, "clearly 786 in the standard erroneous.”
1061 (1989). show that the tumors or 102 L.Ed.2d Sentencing evidence to 714 Astor- gall problem were related to implement bladder Commission has acted to Con- gress’s ri’s conduct. decision when it confined the sen- tencing judge relatively to a narrow sen- letter The Needles wrote the second tence range objectively determined on the it, In upon the district court relied. which basis of particular reliable evidence that they state: effects accompany particular crime. suffered, Needles Audrey H. Both of us Even in departures, fairly large where a (which out high pressure with blood retained, element of discretion is facts and is hospitalized) of control and almost grounded on reliable evidence must show doctor’s and under a now on medication that one of the departure reasons for act fraudulent care. Dennis Astorri’s present. anxiety, em- pain, caused us considerable would still I anger. We do not person barrassment and doubt that a suffers be returned to us! money psychologically like our to when he loses his life’s sav- ings, However, let alone his I home. be- App. at 85. any lieve economic loss a victim suffers is the effect Astorri’s The evidence about adequately otherwise taken into account Taylors and the Needles’ fraud had on the 2F1.1(b)(1)(H), adjust- under Guidelines § support insufficient to the district health is ing the offense level for the amount of that some of the victims court’s conclusion Likewise, monetary loss. I believe that the perma- the kind of substantial and suffered age of the victim is taken into account im- physical, nent intellectual or behavioral 3A1.1, relating under Guidelines to vul- requires that 5K2.3 pairments Guidelines § victims, nerable a section which the district before an correctly applied to enhance Astorri’s psychological injury is authorized. These sentence. unsupported lay statements are not reliable required support kind evidence of the Astorri’s conduct demonstrates a heart- guidelines enhancement of a sentence. willingness less to trade on the affection of Sciarrino, See, e.g., United States promised marry the woman he had and (3d Cir.) (while hearsay permissi- F.2d 95 parents placed the trust her in him she and sentence, guidelines determining it ble secretly plundered while he her degree reliability), cert. must have some against age. parents had reserved their old — -, denied, U.S. 110 S.Ct. understanding of men and common (1989). L.Ed.2d every place women of time and condemns However, despicable Astorri as a cad. Likewise, sentencing judge’s I think the Sentencing taken Astorri’s Commissionhas psychological that own observations truly outrageous cynical manipulation and resulting the eco- naturally trauma private family of his fiancee’s for his own losses Astorri’s fraud visited nomic gain into consideration Guidelines betrayal profound and his his victims 3A1.1, victims, relating to vulnerable Kronyaks daughter their is insufficient 3B1.3, relating to abuse of Guidelines § objective symptoms of substantial to show trust. intellectual, psychological, continuous impairment. emotional behavioral focuses elsewhere in Guidelines 5K2.3 are conclusions that Those observations psy- permitting enhancement for extreme on reliable evidence under must be founded chological suffering. There is no reliable They are not themselves guidelines. an in this record to show such evidence evidence. is suf- injury. Although the evidence here find- support ficient to the district court’s of crime’s effect Perhaps determinations ing Astorri’s victims were vulnerable left have been better on its victims would included the that his scheme and to show sound discretion of to the observations trust, not an it was elements of abuse Congress has sentencing judge, but *10 any of Astorri’s victims sufficient to show v. decided Mistretta Unit- otherwise. See 647, 652, injury” States, psychological “extreme suffered S.Ct. ed U.S. permit and so enhancement of his sentence
under 5K2.3. using
By adequately factors taken into
account guidelines elsewhere as a
basis for an enhancement under Guidelines 5K2.3, the district court it erred when
added two levels to Astorri’s relat- offense
ed conduct for his psycho- victims’ extreme Uca,
logical suffering. See 867 F.2d at
786-87.
Accordingly, in addition to the reduction orders,
of the offense level the Court I
would reverse the district court’s two level under Guidelines resentencing 5K2.3 and remand for
accordance with the Guidelines at an of- steps
fense level four below the level the
district court used at initial Astorri's sen-
tencing.
O’LEARY, O’Leary, Robert and
Patricia, h/w, Appellants,
LIBERTY MUTUAL INSURANCE
CO., Appellee.
No. 90-1344. Appeals,
United States Court of
Third Circuit. 12(6)
Submitted Under Third Circuit Rule
Sept. 1990.
Decided Jan.