United States v. Vitrano, Thomas P.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 06-1512

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THOMAS P. VITRANO,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02-CR-199—Rudolph T. Randa, Chief Judge.

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ARGUED DECEMBER 6, 2006—DECIDED JULY 19, 2007

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Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. On August 8, 2003, Thomas

Vitrano pleaded guilty to one count of possessing a fire-

arm as a felon and one count of possessing a firearm while

subject to a domestic abuse injunction, both in violation of

18 U.S.C. § 922(g). The firearm at issue was a Remington

870 shotgun that Vitrano had taken with him to go duck

hunting. He was initially sentenced to 120 months’

imprisonment—the term that the district judge believed

was the statutory maximum—but the United States

appealed the sentence claiming that Vitrano should have

been classified a career offender under the Armed Career

Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). See United

States v. Vitrano, 405 F.3d 506, 507 (7th Cir. 2005)

2 No. 06-1512

(“Vitrano I”). We agreed with the government and re-

manded for re-sentencing. In light of Vitrano’s status as an

armed career criminal, his new guideline range on remand

was 235-293 months; the new statutory maximum to which

he was exposed was life in prison. The government pro-

duced evidence for the first time at his second sentencing

hearing showing that Vitrano was exceptionally violent

toward people, not just ducks. The judge, considering the

new evidence, re-sentenced Vitrano to 360 months’ im-

prisonment, 67 months above the advisory guideline range.

On appeal, Vitrano raises multiple challenges to his re-

sentencing proceedings. Finding no error, we affirm.

I

The procedural background of the case is spelled out in

Vitrano I, for those who are interested; we see no need to

repeat it here. Each of Vitrano’s current claims on appeal

relates to the government’s introduction at his second

sentencing of damaging prior uncharged conduct that was

not before the district court the first time around. The

particular evidence to which Vitrano takes exception

reveals that he sent multiple functioning pipe bombs

disguised as a birthday present to his former girlfriend’s

house. The pipe-bomb incident technically bore no rela-

tion to the shotgun possession for which Vitrano pleaded

guilty (except that the government discovered the shotgun

during the course of its investigation of the pipe-bomb

incident), but the evidence at the second sentencing

hearing demonstrated that Vitrano was responsible for

them. Two police officers who investigated the offense

testified that the bombs were functioning and that some

of the parts contained in them were traceable to Vitrano.

The prosecution also presented statements by jailhouse

informants claiming that Vitrano had discussed with them

various details about the bombing, including certain facts

No. 06-1512 3

that the government posited Vitrano could have known

about only if he had actually carried out the plot.

The government did not limit its new evidence to the

pipe-bomb incident. It also detailed numerous other epi-

sodes from Vitrano’s exceedingly violent past. It summa-

rized out-of-court statements by Vitrano’s mother, daugh-

ter, an ex-wife and multiple former girlfriends—includ-

ing Patricia Gerard, the recipient of the “birthday pres-

ent” pipe bombs—recounting harrowing acts of violence.

Vitrano’s first wife, for example, stated that he would

“continuously beat her,” that he broke her nose, jaw, and

ribs, and that at least once he threw what appeared to

be a lit pipe bomb at her. The other statements were

similarly disturbing; at least three women, including

Gerard, had obtained restraining orders against Vitrano.

The police officers who testified at sentencing—all

experienced—agreed that Vitrano was “one of the most

violent individuals [they had] encountered in [their]

career[s].”

In imposing a sentence, the district judge explicitly

considered the factors outlined in 18 U.S.C. § 3553(a). The

court looked first at Vitrano’s extensive criminal history,

his prior drug use and mental instability, as well as his

demonstrated disrespect for authority. It concluded that

the government had demonstrated that Vitrano was the

person responsible for the pipe bombs left at Gerard’s

home, and then it considered the other evidence of

Vitrano’s violent past. See 18 U.S.C. § 3553(a)(1). It was

that factor, more than any others, that drove the court’s

decision to choose a sentence above the guideline range.

Vitrano challenges his new sentence on five grounds: he

argues first that the preponderance of the evidence

standard used at sentencing violates due process; second

that the district court erred by considering evidence that

was not “relevant” to the charged offense; third that the

4 No. 06-1512

court erroneously failed to make an explicit ruling on his

pre-sentence motion; fourth that the government’s use of

new damaging evidence at the second sentencing was

the product of vindictiveness; and finally, that the govern-

ment breached a promise not to use that evidence against

him at sentencing. We consider each argument in turn.

II

Vitrano’s claim that facts found at sentencing must be

proven beyond a reasonable doubt is entirely without

merit, as we have consistently held, and as the Supreme

Court has recently underscored. See Rita v. United States,

127 S.Ct. 2456, 2466 (2007); see also United States v.

Dean, 414 F.3d 725, 730 (7th Cir. 2005); United States v.

Robinson, 435 F.3d 699, 701 (7th Cir. 2006). In light of

Rita, we consider this argument foreclosed.

His second claim—that conduct considered by a district

court in imposing a sentence above the guideline range

must be “based on factors relevant to the offense of

conviction”—warrants only slightly more attention. He

maintains that only those incidents that are somehow

related to his use of a shotgun for duck hunting can be

considered by the district judge at sentencing. Since, in

his view, the uncharged allegations of violence toward

his ex-wife and girlfriends are “completely unrelated” to

his possession of a shotgun for hunting, it was improper

for the district judge to enhance his sentence based on

them.

Vitrano is confusing those guideline provisions that

require the district judge to make certain factual findings

in calculating the applicable guideline range with the

factors that may be considered under § 3553(a) in choosing

the ultimate sentence. Although provisions in the guide-

lines such as U.S.S.G. 1B1.3(a)(2)—the “Relevant Conduct”

No. 06-1512 5

provision—allow a district judge to enhance a defendant’s

advisory guideline range only for conduct that is “part of

the same course of conduct or common scheme or plan as

the offense of conviction,” once the applicable range is

determined, the judge’s ability to choose which sentence to

impose is not so constrained. See United States v. Orozco-

Vasquez, 469 F.3d 1101, 1107 (7th Cir. 2006) (“Sentencing

post-[United States v.] Booker[, 543 U.S. 220 (2005)]

requires the sentencing judge to properly calculate the

advisory guidelines range in the same manner as before

Booker and then to make a discretionary decision whether

to sentence the defendant within the advisory range or

outside it in light of the very broadly stated sentencing

factors set forth in § 3553(a).”). 18 U.S.C. § 3661, entitled

“Use of information for sentencing,” states, “No limitation

shall be placed on the information concerning the back-

ground, character, and conduct of a person convicted of an

offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate

sentence.” As we stated in United States v. Nowicki, with

respect to the sentencing process, “The trial judge may

‘appropriately conduct an inquiry broad in scope, largely

unlimited either as to the kind of information he may

consider, or the source from which it might come.’ ” 870

F.2d 405, 406-07 (7th Cir. 1989) (quoting United States v.

Nesbitt, 852 F.2d 1502, 1521 (7th Cir. 1988)). This has

long been understood to include “reliable evidence of

wrongdoing for which the defendant has not been charged

or convicted.” Nowicki, 870 F.2d at 407.

Vitrano cites United States v. Castro-Juarez for the

proposition that we should “look at pre-Booker law by

analogy and ask how the sentence would have fared under

decisions that analyzed the reasonableness of upward

departures.” 425 F.3d 430, 434 (7th Cir. 2005). But in

Castro-Juarez, we wrote that since Booker,

6 No. 06-1512

[W]e have looked to [the “upward departures” provi-

sion of the guidelines] and [pre- Booker cases] only by

way of analogy, and while [the defendant’s] sentence

might not have been sustainable as an “upward depar-

ture” before Booker, it does not follow that [his sen-

tence] is necessarily unreasonable. Before Booker, we

recognized that district courts were required to sen-

tence within the guideline range except in unusual

cases, and anything but a loose comparison to pre-

Booker departure cases would vitiate the post-Booker

discretion that sentencing courts enjoy. All that is

necessary now to sustain a sentence above the guide-

line range is an adequate statement of the judge’s

reasons, consistent with section 3553(a), for thinking

the sentence that he has selected is indeed appropriate

for the particular defendant.

Id. at 436 (internal citation and quotation omitted). See

also United States v. Valle, 458 F.3d 652, 657 (7th Cir.

2006) (“[O]ur pre-Booker standards for evaluating depar-

tures are no longer binding. . . .”); United States v.

Arnaout, 431 F.3d 994, 1003 (7th Cir. 2005) (noting “that

the concept of ‘departures’ has been rendered obsolete

in the post-Booker world”).

Vitrano has not specifically challenged the reasonable-

ness of his sentence, and so we have no occasion to con-

sider that question. (Given the judge’s explanation and

Vitrano’s record, however, nothing jumps out as unrea-

sonable.) All that is before us is the question whether it

was permissible for the district judge to consider the

evidence included in the government’s 2006 sentencing

memorandum in arriving at the ultimate sentence. We

conclude that it was.

We turn next to Vitrano’s claim that the district court

failed to rule on his pre-sentencing motion. That motion

raised essentially the same claims that Vitrano is present-

ing here: (1) that the court should not base an enhance-

No. 06-1512 7

ment on “irrelevant” conduct; (2) that the request for an

“upward departure” is the product of vindictiveness;

(3) that an “upward departure” is a breach of a promise

made by the prosecutor; and (4) that the government did

not give defense counsel specific notice of the rationale it

intended to use in arguing for an “upward departure.” He

argues that the failure to rule explicitly on his motion

violates FED. R. CRIM. P. 32(i)(3)(B), which states, “At

sentencing the Court must—for any disputed portion of the

pre-sentence report or other controverted matter—rule on

the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or

because the Court will not consider the matter in sen-

tencing.”

The purpose of Rule 32 is “to ensure that sentencing

is based on reliable facts found by the court itself after

deliberation. . . .” United States v. Darwich, 337 F.3d 645,

666 (6th Cir. 2003). The rule applies specifically to factual

disputes. United States v. Cunningham, 429 F.3d 673, 678

(7th Cir. 2005) (“The rule may be limited to factual

disputes. The cases so assume, without so stating out-

right.”). None of Vitrano’s arguments raises a dispute

about any of the facts on which the district judge relied

in enhancing his sentence; he simply asserts various

reasons why those facts should not have been considered

at all. Rule 32 imposes no affirmative duty on the district

court to address these general points. In any event, the

district judge, who noted at sentencing that he had read all

the briefs and submissions, clearly and accurately stated

its basis for imposing a sentence above the guidelines

range. As the district court explained:

Post-Booker, the Court can look at the factors under

3553 . . . . In doing so, the Court . . . looks at the

history and characteristics of the Defendant. It also

looks at the nature of the offense in making those

calculations. And in the past any deviation based on

8 No. 06-1512

those factors from the sentencing guidelines required

that they be outside the heartland of cases. Now, the

Court can consider those factors and, as long as the

sentence is reasonable, not have to make a finding

that any of the factors or any of the facts that it

utilizes are outside the heartland of cases as described

by the sentencing guidelines.

As for Vitrano’s other arguments, the district court did

not err by leaving them unaddressed. See Cunningham,

429 F.3d at 678 (“A sentencing judge has no more duty

than we appellate judges do to discuss every argument

made by a litigant; arguments clearly without merit can,

and for the sake of judicial economy should, be passed over

in silence. . . .”). Vitrano has not shown that the district

court committed error at sentencing.

III

We now consider Vitrano’s complaints about the prosecu-

tor’s behavior at sentencing. The government’s decision to

introduce the evidence about the pipe bombs and the

other uncharged violent conduct must have been vindic-

tive, in Vitrano’s view, because it did not present this

information at his first sentencing. He relies on the

Supreme Court’s decision in North Carolina v. Pearce,

which held, “Due process of law . . . requires that vindic-

tiveness against a defendant for having successfully

attacked his first conviction must play no part in the

sentence he receives after a new trial.” 395 U.S. 711, 725

(1968). The ruling in Pearce, however, does not help

Vitrano. Pearce was intended in part to protect a defen-

dant’s right to appeal or to attack his first conviction

collaterally without fear of reprisal. Here, though, it was

the government that appealed the initial sentence, and it

did so (as it was entitled to do under 18 U.S.C. § 3742(b))

for the very purpose of exposing Vitrano to more jail time.

No. 06-1512 9

The government made it abundantly clear throughout

the litigation that it intended to seek as lengthy a sen-

tence as was legally possible. The plea agreement stated

that “[t]he government will recommend to the sentencing

court that the defendant is an Armed Career Criminal,”

and the government specifically reserved the right “to

recommend an upward departure and/or consecutive

sentences based on aggravating circumstances.”

It followed through on its promise and argued at the

first sentencing that Vitrano was a career offender. The

government additionally stated at that point that it

believed “very strongly” that Vitrano deserved a sentence

at the high end of the guideline range. Unsuccessful in

persuading the district court that Vitrano qualified for

the ACCA enhancement, the government appealed the

issue. After it won, it announced at re-sentencing that

“[w]e did not take the appeal to establish that the Defen-

dant was an armed career criminal merely as an academic

exercise.” Nothing in this record suggests that the govern-

ment’s actions on re-sentencing had anything to do with

Vitrano’s legal strategy on appeal. There was no vindic-

tiveness here.

There is also no evidence in the record that the use of

the uncharged conduct at the re-sentencing breached any

promise made by the prosecutor, as Vitrano alleges. In

fact, there is substantial evidence that no such promise

was ever made. Vitrano does not dispute the fact that the

plea agreement contains an integration clause, which

states that “no threats, promises, representations, or other

inducements have been made, nor agreements reached,

other than those set forth in this agreement, to induce the

defendant to plead guilty.” Moreover, as noted, the agree-

ment specifically preserves the government’s right to

advise the district court and the probation office of any

and all information which might be pertinent to sentenc-

ing, as well as the right to seek an upward departure

10 No. 06-1512

based on aggravating circumstances. When asked at his

change of plea hearing whether there were any “threats or

promises . . . aside from what’s contained in this Plea

Agreement,” Vitrano replied, “No, Your Honor.” His

attorney’s stated recollection to the contrary does not

outweigh the documented evidence in the record.

IV

We hold that neither the district court nor the govern-

ment committed error during Vitrano’s re-sentencing

proceedings. The sentence is therefore AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-19-07