UNITED STATES of America, Plaintiff-Appellee, v. Michael Attilio MANGARELLA, Defendant-Appellant.
No. 11-4613.
United States Court of Appeals, Fourth Circuit.
July 20, 2012.
Submitted: June 29, 2012.
486 Fed. Appx. 648
Therefore, we affirm the judgment below and deny Brown‘s pending motion to compel discovery. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Before TRAXLER, Chief Judge, and GREGORY and DAVIS, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Attilio Mangarella was convicted by a jury of conspiracy to defraud the United States,
On remand, the district court adopted its previous rulings on Mangarella‘s objections to the presentence report and imposed a sentence of 360 months, as well as ordering restitution of $2,687,501.47 and forfeiture of $10 million. Because no count carried a statutory maximum equal to 360 months, in order to achieve that total sentence the court imposed the maximum 60-month sentence on Count One, a 60-month sentence on Count Two, and concurrent 240-month sentences on the remaining counts, with the sentences for Counts One and Two to run consecutive to each other and to the remaining 240-month sentences. See
We first address Mangarella‘s two claims of error with respect to his convictions. Mangarella argues that the district court plainly erred by failing to instruct the jury sua sponte on venue. A defendant has a right to be tried in the state and district where the alleged crime occurred.
Mangarella also claims that the district court abused its discretion in allowing his co-conspirators to authenticate his handwritings. Herman Kankrini and Larry Cunningham testified at trial about various handwritten materials that were seized from Mangarella‘s call center in Costa Rica on the day he was arrested. The materials had been admitted without objection as government exhibits. Kankrini testified that Mangarella had written the employee rules that were posted in the call center. Cunningham identified a document as the opening pitch used when a victim was first contacted, and said Mangarella had written it. He also recognized the office rules as having been written by Mangarella. In addition, Kankrini testified that he had read many handwritten letters Mangarella sent him during the year they were in jail in Costa Rica.
Mangarella now claims that the documents containing his handwriting were not properly authenticated under
With respect to Mangarella‘s sentence, we review a sentence under a deferential abuse-of-discretion standard, necessitating consideration of both the procedural and substantive reasonableness of the sentence. Gall v. United States, 552 U.S. 38, 41, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Improperly calculating the adviso-
Mangarella first claims that the district court clearly erred in denying him an adjustment for acceptance of responsibility,
Mangarella argues that he acknowledged his guilt before trial. The government concedes that Mangarella made certain admissions during two proffer sessions after he was extradited to the United States. However, when no plea agreement was reached, Mangarella moved to suppress statements he made to informants in Costa Rica after his arrest, as well as the incriminating statements he made during the proffer sessions. At the suppression hearing, Mangarella testified that his first lawyer pressured him into making the proffers and that he did so because the attorney led him to believe that he might receive immunity from prosecution and witness protection for his wife and children. Mangarella also testified that he was barely literate and did not understand much of what transpired during the time he made the proffers. After the court denied his suppression motion, Mangarella went to trial, contesting his guilt. In his post-conviction interview with the probation officer, Mangarella said he drank heavily and was intoxicated most of the time he was in Costa Rica, again suggesting that he was not really responsible for his criminal conduct. On these facts, the district court did not clearly err in denying Mangarella a reduction for acceptance of responsibility.
Next, Mangarella contests the application of Guidelines enhancements because they were not included in the extradition agreement. The “rule of specialty” permits a person extradited to the United States to be tried only for the offense or offenses for which extradition was granted. See United States v. Rauscher, 119 U.S. 407, 430, 7 S.Ct. 234, 30 L.Ed. 425 (1886); see also Kasi v. Angelone, 300 F.3d 487, 500 (4th Cir.2002). The extradition treaty between the United States and Costa Rica incorporates the rule of specialty. United States v. Anderson, 472 F.3d 662, 665 n. 1 (9th Cir.2006). Costa Rica extradited Mangarella with the specific assurance that he would not be tried or punished for offenses other than those for which extradition was granted. Whether the district court violated the rule of specialty is a legal issue reviewed de novo. United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir.2004); see also United States v. Lomeli, 596 F.3d 496, 499 (8th Cir.2010).
Mangarella contends that sentencing enhancements that increased his offense level above the base offense level of 7 constituted a violation of the extradition agreement because they were neither charged in the indictment nor included in the extradition documents. We conclude that consideration of uncharged conduct to determine the sentence did not violate the rule of specialty. See Lomeli, 596 F.3d at 503 (criminal history); United States v. Garrido-Santana, 360 F.3d 565, 578 (6th Cir. 2004) (obstruction of justice); United States v. Lazarevich, 147 F.3d 1061, 1063-65 (9th Cir.1998) (upward departure for child abduction after conviction for passport fraud); United States v. Saccoccia, 58 F.3d 754, 783-87 (1st Cir.1995) (criminal forfeiture).
Mangarella suggests that the maximum sentence he could receive was twenty-five years because anything more would violate the extradition agreement. As he did in the district court, he points to the statutory maximum of five years for Count One and twenty years for the remaining counts of conviction. However, no error occurred. The district court imposed the statutory maximum for each count (with a lesser sentence on Count Two), and stacked the sentences to the extent necessary to achieve a sentence within the Guidelines range, following the procedure directed in
Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Mangarella next claims that the only permissible enhancement was the loss amount, which was found by the jury in a special verdict form, because the facts supporting the other enhancements were not submitted to the jury and found beyond a reasonable doubt. Where, as here, the Guidelines are treated as advisory and the sentence does not exceed the statutory maximum, this argument is without merit. United States v. Blauvelt, 638 F.3d 281, 293 (4th Cir.), cert. denied, --- U.S. ---, 132 S.Ct. 111, 181 L.Ed.2d 37 (2011). Sentence enhancements are generally factual issues determined by a preponderance of the evidence. Id.
In the presentence report, the probation officer recommended a 2-level increase under
Mangarella first argues that Testore was not a credible source because he had a
Second, Mangarella contends that the government did not prove that he possessed the gun in connection with the mail fraud offense. Because firearms are not generally regarded as tools of the trade in mail fraud cases, see United States v. Aslan, 644 F.3d 526, 551-52 (7th Cir.2011), the mere presence of Mangarella‘s firearm at the call center is not necessarily sufficient to support the enhancement. However, the government points out that testimony at Mangarella‘s trial established that the usual practice for telemarketing schemes operating in Costa Rica was to have runners regularly pick up wire transfers from victims and bring the cash to the call center. When Mangarella was arrested at his call center, he had $3408 in cash on his person. Another $40,000 in cash was seized from his home. Given the security concerns implicit at the call center, the district court‘s determination that Mangarella possessed the firearm in connection with the wire fraud offense is not clearly erroneous.
Mangarella maintains that the 4-level role adjustment he received under
Last, Mangarella maintains that his 360-month sentence is unreasonable and that the district court failed to give an adequate explanation for giving him a longer sentence than some of his co-conspirators. Gall, 552 U.S. at 50; United States v. Carter, 564 F.3d 325, 330 (4th Cir.2009). Mangarella‘s below-Guidelines sentence is entitled to a presumption of reasonableness. United States v. Susi, 674 F.3d 278, 289 (4th Cir.2012). Moreover, the district court discussed most of the
We therefore affirm the district court‘s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.