United States v. Frank L. Amodeo

387 F. App'x 953

11th Cir.

2010

Check Treatment

Docket

UNITED STATES of America, Plaintiff-Appellee, v. Frank L. AMODEO, Defendant-Appellant.

No. 09-12937

United States Court of Appeals, Eleventh Circuit.

July 21, 2010.

953-954

Non-Argument Calendar.

Miller to 119 months for this count, a sentence that is neither procedurally nor substantively unreasonable. The district court did not procedurally err because it correctly calculated Miller‘s Guidelines’ range, properly considered the § 3553(a) factors, and fully explained its reasoned decision for imposing an above-Guideline‘s sentence. Both the 119-month sentence for Count 3 and the 240-month total sentence are substantively reasonable, especially considering that Miller‘s criminal history category did not reflect his previous murder conviction in the United Kingdom.

IV. Miller‘s Motion to Forbid Sentence-Appeal Waivers

The district court did not err in denying Miller‘s motion to forbid the government from seeking a sentence-appeal waiver as a condition to entering into a plea agreement.⁴ Sentence-appeal waivers are constitutional, as the right to appeal is not a constitutional right, but is rather statutory in nature. United States v. Bushert, 997 F.2d 1343, 1347 (11th Cir.1993). As such, a sentence-appeal waiver is enforceable if the defendant knowingly and voluntarily consents. Id. at 1350.⁵

V. Miller‘s Request to Disclose Manning‘s PSI

The district court did not abuse its discretion in denying Miller‘s request to disclose coconspirator India Manning‘s PSI.⁶ Generally, it is presumed that courts will not disclose the contents of the PSI of another individual because routinely doing so would have a “chilling effect on the willingness of various individuals to contribute information that will be incorporated into the report.” United States v. Gomez, 323 F.3d 1305, 1308 (11th Cir.2003). Thus, a party who requests another‘s PSI must “demonstrate a compelling, particularized need for disclosure.” Id. (quotations omitted).

Here, the district court did not abuse its discretion by denying access to Manning‘s PSI because Miller failed to articulate with particularity any compelling need for the information contained therein.

AFFIRMED.

Peggy Morris Ronca, Orlando, FL, for Plaintiff-Appellee.

Thomas H. Dale, Dale Law Firm, P.A., Orlando, FL, for Defendant-Appellant.

Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Frank L. Amodeo appeals his convictions after he pleaded guilty to (1) conspiracy to defraud the United States, 18 U.S.C. § 371; (2) failure to remit payroll taxes, 26 U.S.C. § 7202; and (3) obstruction of an agency investigation, 18 U.S.C. § 1505. On appeal, Amodeo seeks to have his guilty plea set aside and his case remanded to the district court based on (1) ineffective assistance of counsel by his lawyer, who allegedly labored under two actual conflicts of interests* and (2) the district court‘s failure to make a competency determination. No reversible error has been shown; we affirm.

We generally do not consider claims of ineffective assistance of counsel on direct appeal “where the district court did not entertain the claim nor develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.2002). In such a case, the preferred method of raising ineffective assistance of counsel is in a 28 U.S.C. § 2255 motion to vacate. See Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003).

We decline to address Amodeo‘s ineffective assistance of counsel claims because the record is not sufficiently developed to evaluate the claims at this time. The record reveals that the ineffective assistance of counsel claims raised by Amodeo in his present appeal were not addressed at any depth in the district court. Although Amodeo briefly raised the underlying issues about the alleged conflicts, these claims were not the subject of separate briefing as constitutional ineffectiveness claims nor addressed as such and made the subject of findings and conclusions at the sentencing hearing. See id. (an appellate court is not best suited to assess the factual predicate for an ineffective assistance of counsel claim in the first instance “even if the record contains some indication of deficiencies in counsel‘s performance“). Without a factual record revealing the reasons for counsel‘s choices, we cannot effectively decide these claims.

Amodeo‘s claim that the district court failed to make a competency determination plainly is belied by the record. Notwithstanding the stipulation by both Amodeo and the government that he was competent, the district court heard testimony from one of Amodeo‘s treating doctors about his treatment in the year leading up to the plea agreement; and this doctor opined that Amodeo was competent under the federal standard. And, at the plea hearing, after engaging in lengthy colloquies directly with Amodeo about his mental state, his comprehension of the charges against him, the details of the plea agreement, and the legal consequences of the guilty plea, the district court determined specifically that Amodeo was competent to enter into the plea agreement. Therefore, Amodeo‘s competency argument is without support in the record.

AFFIRMED.

* The first supposed conflict involved his criminal defense counsel‘s attendance at a pre-indictment “mock” deposition, where Amodeo was being prepared for an interview with the Internal Revenue Service. And the second supposed conflict arose from an alleged threat the government made to Amodeo to seek forfeiture of his lawyer‘s fees if Amodeo did not agree to an earlier proposed plea agreement.

Notes

We review constitutional and jurisdictional issues de novo. ; .

Additionally, as the district court explained, the ripeness doctrine prevented the district court from considering the merits of Miller‘s motion because, at the time Miller filed his motion, there was no pending plea agreement between the parties. See .

We review a district court‘s decision as to whether to disclose a PSI for abuse of discretion. .