USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________

No. 94-2067

UNITED STATES OF AMERICA,

Appellee,

v.

DONATO F. ANGIULO,
Defendant, Appellant.

_________________________

No. 94-2068

UNITED STATES OF AMERICA,

Appellee,

v.

FRANCESCO F. ANGIULO,
Defendant, Appellant.

_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________
_________________________

Before

Selya, Cyr and Boudin, Circuit Judges.

______________
_________________________

Anthony M. Cardinale for appellants.

____________________
James C. Rehnquist, Assistant
___________________
whom

Donald K. Stern,
________________

United

United States Attorney, with

States Attorney,

and

Ernest S.
_________

Dinisco, Assistant United States Attorney, were on brief, for the

_______
United States.

_________________________

June 15, 1995

_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

This procedural motley requires

that

we explore

rules

the

that predate

guidelines,

Having

and are

completed the

interstices

of sentence-related

the inauguration

in

that sense

judicial

of the

criminal

federal sentencing

relics

of a

equivalent of

bygone

era.1

an archaeological

dig, we deny the requested relief.

I.
I.

BACKGROUND
BACKGROUND

In 1983, a federal

Donato

and Francesco

grand jury indicted the appellants,

Angiulo,

along with

activities allegedly undertaken in

the

Patriarca family of La

several others,

for

furtherance of the affairs of

Cosa Nostra.

Though the indictment

charged certain members of the enterprise with predicate offenses

that

included murder, it did not allege that Donato or Francesco

Angiulo personally had committed any homicidal acts.

lengthy trial, a jury

found the appellants guilty on

Following a

a plethora

of counts,

of

including conspiracy to make

credit, 18 U.S.C.

racketeering

892(a), RICO conspiracy,

violations,

id.
___

1962(c),

illegal gambling business, id.

___

On April 3,

presided

extortionate extensions

and

id.
___

operation of

an

Nelson, who

had

hearing.

The

1955.

1986, the

Hon. David S.

at the

trial,

convened a

colloquy focused

on the

presentence investigative

Reports).

Among

1962(d),

other things,

both

disposition

PSI Reports

reports (PSI

contained

statement, under the heading "prosecution version," to the effect

____________________

1We set forth in an appendix hereto the text of the relevant

procedural rules as they

stood on the date of

3, 1986).

sentencing (April

that the

enterprise with which the appellants

the Patriarca family

matter of duty," in

were affiliated

engaged in "crimes, including murder, as a

order to advance familial interests.

There

followed a compendium of felonies, including four murders and two

unconsummated murder

enterprise.

Elliot

conspiracies,

Weinstein,

took umbrage at that account.

allegedly committed

Francesco Angiulo's

He stated in part:

by

the

attorney,

In
to

support of my

strike

. .

objection and request

indicate that

during the proceedings in

nowhere

the case was there

any evidence or suggestion that my client was

involved in acts

of murder, conspiracies

to

murder or shared in any intent or desires for

the

murder

specifically
sentence

of

any

named

person
victims

report

have

at

all.

in
no

the

The
pre-

relationship

whatsoever to my client and indeed during the

course

of

the

stated

to

the

proceedings
Court

discussions and the

the

at

government

several

Court indeed

sidebar

instructed

the jury that evidence

as to murders was not

being admitted against

Francesco Angiulo . .

. .

Robert

Sheketoff,

objection.

Donato

Angiulo's

lawyer,

joined

He termed the recital "misleading" and added:

My

client

was

not

charged

predicate acts involving murder.

it is severely prejudicial
drafted

this and

it is

any

And I think

the way they have

not clear

report I would suggest either

section or

with

in any point in

from the

in the offense
the report that,

in

the

in fact, he was not charged, that there is an

affirmative statement that he was not charged
with any predicate acts of the verdict.

Judge

Nelson

references to

both

overruled these

the multiple

Angiulos to

appealed

lengthy

their convictions

objections

murders.

terms of

on other

and

left intact

He proceeded

immurement.

grounds, but

the

to sentence

The

brothers

eschewed any

further

challenge

to

the

PSI

Reports.

Their

appeals were

unavailing.

See
___

United States
_____________

v. Angiulo, 897
_______

F.2d 1169

(1st

Cir.), cert. denied, 498 U.S. 845 (1990).

_____ ______

On

December

substantially

18,

identical motions

1990,

for

the

appellants

filed

sentence reduction

in the

district court.

They served these motions within 120 days of the

Supreme Court's

denial of certiorari (which

1, 1990).

The motions

spotlighted

appellants

received

and

under the newly

The government

invoked former Criminal

purported

received

occurred on October

disparity

the

between

Rule 35(b)

the

sentences appellants

minted federal

filed objections to the

and

sentences

would

have

sentencing guidelines.

motions and subsequently

served a detailed opposition.

Toward the end of 1991, the appellants,

acting pro se,

___ __

each filed an undated

"Rule 35 Reply" that bemoaned

parole-related effects of

Reports.

that

the

the references

to murder

the adverse

in the

PSI

These pleadings raised, for the first time, the charge

Judge Nelson had violated

course of

imposing

Fed. R. Crim.

sentence.

On

P. 32(c)(3)(D) in

January 24,

1992,

the

appellants, through new counsel, each filed in the district court

pleading entitled "Appeal Pursuant to

Motion Pursuant to Rule

the

anticipated

32(c)(3)(D)."

adverse

effects

of

28 C.F.R. 542.15 and/or

These pleadings described

the

murder

references

contained in the PSI Reports, and sought the expungement of those

references.

In each instance, the clerk of court docketed the

___________________________________________________

pleading as a separate motion.

______________________________

The contents are consistent with

that

characterization:

each pleading

clarified

that

"[t]he

alternative and additional remedy [each appellant] seeks pursuant

to

Fed. R. Crim. P. 32(c)(3)(D) is simply another more expedient

manner

of

effecting

administratively."2

earlier Rule

the

relief

These

35(b) motions by

he

pleadings

has

previously

adopted

sought

the defendants'

reference but cautioned

that the

new initiatives should be viewed separate and apart therefrom "as

an effort to implement the Rule 32 requests [that each] defendant

made at the time of his sentencing."

Matters

remained

dormant

for

because Judge Nelson assumed senior status.

William G. Young stepped into the void.

Young denied the appellants'

the sentences

and

imposed by

necessary" to

United States
_____________

spell,

presumably

Eventually, the Hon.

On April 25, 1994, Judge

Rule 35(b) motions, concluding that

Judge Nelson were

vindicate important

v. Angiulo, 852 F.
_______

The Angiulos did not

"entirely justified

public policy

Supp. 54, 62 (D.

concerns.

Mass. 1994).

prosecute appeals from the denial

of their

Rule 35(b) motions.

On May 31, 1994, the appellants filed a written request

asking

Judge

Young

to

hold

"status

conference

regarding

defendants' motions pursuant to

Rule 32(c)(3)(D)."

Although the

record is tenebrous as to whether such a conference materialized,

the

request sufficed

to

bring

the

Rule

32

motions

to

the

____________________

2The regulation cited in

the

procedure for

Prisons,

the January 24 pleadings describes

administrative appeals

within the

but makes no mention of judicial review.

542.15 (1994).

Bureau of

See 28 C.F.R.
___

forefront.

In an unpublished rescript dated September 12,

Judge Young addressed

of

Rule

32,

disposition

murder

finding

that

the

In

He

discerned no violation

objections

hearing did not dispute

references.

about the

those motions.

1994,

proffered

at

the

the factual accuracy of the

the bargain,

the court

expressed doubt

intrinsic merit of the objections, indicating that the

statements contained in the PSI Reports were not misleading, and,

moreover, were directly relevant to the sentencing determination.

The appellants

filed these timely appeals

in the wake

of the court's September 12 order.

They seek either resentencing

or,

in the alternative, redaction

of the PSI

the

murder

believe

references that

chances to secure parole.

they

Reports to remove

are hindering

their

II.
II.

ANALYSIS
ANALYSIS

We

start with

bedrock.

Although a

district court's

denial of a motion for sentence reduction under former Rule 35(b)

is

a final

order, and,

thus, an

appealable event,

see, e.g.,
___ ____

United States v. McAndrews, 12 F.3d 273, 278 (1st Cir. 1993); see
_____________
_________
___

also United States

____ _____________

(holding

order),

district

v. Distasio, 820 F.2d 20, 24

________

the grant of a

the present

sentence reduction to

appeals are

court denied

the Rule

April 25, 1994,

and no

appeal period.

See Fed.
___

appeals must

not of

R. App. P.

be taken within 10

be an appealable

that persuasion.

35(b) motion

action was taken

(1st Cir. 1987)

by

order entered

within the

applicable

4(b) (providing that

days from date of

The

such

entry of the

order);

see also United States v. Morrillo, 8 F.3d 864, 867 (1st

___ ____ _____________
________

Cir. 1994) (explaining that the time limits for taking appeals in

criminal cases

are "mandatory and jurisdictional").

Hence, the

district court's Rule 35(b) determinations are not susceptible to

review at this late date.3

Refined to

bare essence, the

defendants' appeals must

stand or fall based on Fed. R. Crim. P. 32.

Criminal

Rule

postsentence

32

motion

circumstances that

properly

provides

no

to correct

obtain here,

independent

PSI

We think they fall.

foundation

Report

the appellants'

for

and, under

the

motions cannot

be recharacterized as timely motions under Rule 35.

We

explain briefly.

We frequently have recognized the importance of Rule 32

and

See,
___

we have

emphasized its

e.g., United States

____ _____________

requirement of

literal compliance.

v. Hanono-Surujun, 914
______________

F.2d 15, 18-20

(1st Cir. 1990); United States v. Jimenez-Rivera, 842 F.2d

______________
______________

550-51 (1st Cir.),

attributes,

cert. denied,
_____ ______

however, do not

487 U.S. 1223

(1988).

create jurisdiction for

545,

These

a court to

entertain

postsentence motions alleging

In the absence

violations of

of either an enabling statute or

Rule 32.

language in the

____________________

3In

any

event,

unfettered discretion

former

Rule

on sentencing

35(b)

conferred

courts.

See,
___

virtually

e.g., United
____ ______

States v. DeCologero, 821 F.2d 39, 41 (1st Cir. 1987) (discussing

______
__________
breadth of district
unlikely that
could

court's discretion).

Judge Young's

successfully have

obvious

inadequacy

United States v. Twomey,

_____________
______
(upholding
district

denial

of

courts have

pre-guidelines

refusal to grant

been

of the

it seems highly

relief thereunder

challenged,especially

motions'

linchpin

35(b) motion

no obligation
with

results

the

See
___

Cir. 1988)

explaining

to harmonize

sentencing

application of the guidelines).

and

given

assertion.

845 F.2d 1132, 1134-35 (1st

Rule

offenses

Thus,

that

sentences for
produced

by

rule's text that

could conceivably be

jurisdiction, we hold that

confer

district

review.

Rule 32, in and

court jurisdiction

Accord United States

______ _____________

Cir. 1989)

based solely

(agreeing that "no

inaccuracies

to

of itself, does

conduct

v. Engs, 884
____

such

not

a postsentence

F.2d 894, 895

postsentence jurisdiction

(5th

exists

on Rule 32(c)(3)(D)"); United States v. Giaimo, 880

_____________
______

F.2d 1561, 1563 (2d

alone, does

read as authorizing

not give

in

Cir. 1989) (holding that "Rule

a district court

PSI

report

after

32, standing

jurisdiction to

defendant

correct

has

been

sentenced"); United States v. Sarduy, 838 F.2d 157, 158 (6th Cir.
_____________
______

1988);

United States
_____________

v. Peloso,
______

1987); United States v.

_____________

824 F.2d

914, 915

(11th Cir.

Williams, 618 F. Supp. 1419,

________

1420 (E.D.

Va. 1985), aff'd, 785

_____

F.2d 306 (4th Cir. 1986); United States v.

_____________

Sheela,
______

724, 726 (D.

667 F. Supp.

Or. 1987);

United States v.
_____________

Burkhead, 567 F. Supp. 1425, 1427-28 (W.D. Mo. 1983).4

________

Appellants

their

Rule

32

motions as ones

courts,

try to

claims

by

locate

serviceable vehicle

characterizing

their

that were brought under Rule 35.

sometimes have

allowed

violations

addressed in timely Rule 35 motions.

of

for

supplementary

We, and other

Rule 32

to

be

See, e.g., United States v.

___ ____ _____________

Feigenbaum, 962 F.2d 230, 232-33 (2d Cir. 1992); United States v.
__________
_____________

Smith, 844 F.2d

_____

158;

203, 207 (5th

United States v.
______________

Cir. 1988);

Katzin, 824
______

F.2d

Sarduy, 838 F.2d

______

234, 237-38

at

(3d Cir.

____________________

4At least one court has reached an opposite conclusion.

United States v. Hart, 922 F.2d
_____________
____
respect,

we regard

Hart as
____

613, 615 (10th Cir. 1990).

wrongly decided

follow it.

and we

See
___

With

decline to

1987);

F.2d

Peloso, 824 F.2d at 915; United States v. Santamaria, 788

______
_____________
__________

824,

however,

828-29

(1st Cir.

is properly seen as

1986).

This

avenue of

founded on former

review,

Rule 35(a), and

more particularly, on the prong of former Rule 35(a) that permits

a district court

manner."

35(a)

to "correct

a sentence imposed

in an

illegal

Like motions arising under former Rule 35(b), such Rule

motions must be filed

within 120 days

next following the

entry of final judgment.5

In view

attempt

to anchor

several infirmities

endeavor.

of this

legal mise-en-scene,

jurisdiction on former

Rule 35

which, taken together, prove

First, jurisdiction to review

the appellants'

suffers from

fatal to their

the alleged violations

of Rule 32 cannot be based on Rule 35(b) in

this case.

While the

considered any

35(b) motions

1994, it

district

court permissibly

Rule 32 irregularities

for discretionary

had no obligation

Angiulos did not

could

have

when it decided

the Rule

sentence reduction in

April of

to do

take timely

the circumstances of

so, and, in

all events,

appeals from the

denial of

the

these

motions.

Second,

properly to be

the circumstances

premised on

do not

permit jurisdiction

former Rule 35(a).

The

appellants

____________________

5Although former Rule 35(a) also allowed a district court to

correct

an "illegal sentence at

available

to

address

Rule

sentences"

were

limited to

statutory

maximum

limits

any time," that

32

those
or

violation
that

because

"illegal

"`exceed the

relevant

violate double

ambiguous or internally contradictory.'"

remedy was not

jeopardy

or

are

Katzin, 824 F.2d at 237

______

(quoting

8A James W. Moore, Moore's Federal Practice

________________________

35.03[2],

at 35-36 (2d ed. 1987)).

neither

cited that

jurisdiction

on it;

rule to

and,

Judge Young

as we

extraordinary circumstances,

in the

appeal."

lower court

cannot be

have

nor attempted

said, "absent

legal theories not

broached

for the

to base

the

most

raised squarely

first time

on

Teamsters, Chauffeurs, Warehousemen & Helpers Union,

______________________________________________________

Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.
____________
______________________

1992).

This

See, e.g.,
___ ____

principle is

United States
_____________

fully applicable

v. Slade,
_____

in criminal

980 F.2d

27, 30

cases.

(1st Cir.

1992).

Furthermore,

in order

to use former

Rule 35(a)

as a

vehicle to review ostensible Rule 32 violations, appellants would

have needed to file their motions within 120 days of the

Supreme

Court's denial

motions

of certiorari.

The

initial Rule 35(b)

were docketed within that time span, but the first pleadings that

mentioned

Rule 32 were not

period expired.

served until well

Even if these

after the 120-day

subsequent attempts somehow could

be deemed to implicate Rule 35(a), the failure to comply with the

120-day deadline

would defeat jurisdiction.6

See United States

___ _____________

v. Ames,
____

743 F.2d 46, 48

limitations

specified

(1st Cir. 1984) (noting

in

former

Rule

35

are

that the time

mandatory

and

____________________

6It is often assumed

that inaccuracies in a PSI

Report may

form the basis for a petition under 18 U.S.C.

2255.

States v. Gattas, 862 F.2d 1432, 1433-34 & n.4

______
______

(10th Cir. 1988);

United States v.
______________
1988).

Mosquera, 845
________

In addition,

F.2d 1122,

1124 n.1

courts have suggested that such

be obtainable pursuant to 18 U.S.C.

2241.

See United
___ ______

(1st Cir.

relief may

See Peloso, 824 F.2d

___ ______

at 915; United States v.

_____________

Daniels, 737 F. Supp. 111, 114

_______

1990).

have

either

The appellants
of those

reliance on

statutes,

section

2255.

not

and they
Thus,

asserted jurisdiction
have expressly
we

take

no

under

disclaimed

view

appropriateness vel non of any such potential remedies.

___ ___

10

(D. Me.

of

the

jurisdictional), cert. denied, 469 U.S. 1165 (1985).

_____ ______

III.
III.

CONCLUSION
CONCLUSION

In this instance, all roads lead to Rome.

the

appellants did not perfect

court's

denial of their

motions are

dead letters.

appellants' postsentence

On one hand,

timely appeals from the district

Rule 35(b)

On the

motions, and,

other hand,

motions rest

hence, those

insofar as

on Rule 32,

the

simpliciter,

the district court lacked jurisdiction to consider them.7

Affirmed.
Affirmed.
________

____________________

7Of course, the district court should simply have denied the
Rule 32 motions
the merits of the

for lack of

jurisdiction, rather than

alleged Rule 32 violations.

reaching

Accordingly, its

comments, though insightful, should not be accorded binding force

or effect if further proceedings eventuate.

11

APPENDIX
APPENDIX

Former

Criminal

Rule 35,

which

applies to

offenses

committed prior to November 1, 1987, provides in pertinent part:

(a) Correction of
(a) Correction of
may correct
and

The

an illegal sentence at

may correct

illegal

Sentence.
Sentence.

manner

court

any time

sentence imposed

within

the

time

in

an

provided

herein for the reduction of sentence.

(b) Reduction
(b) Reduction
reduce a

of Sentence.
of Sentence.

sentence may be made,

may reduce a sentence without

120

days after

probation

is

upon

by

the

Supreme
the

effect

court

of

imposed or

of

120
a

the

judgment or
days

judgment of the

review of,

upholding,

days

mandate

or within 120

of any order or

Court denying

motion, within

or within

affirmance of

dismissal of the appeal,

after entry

or the court

sentence is

revoked,

after receipt
issued

the

A motion to

or having

judgment

of

conviction or probation revocation. . . .

Fed. R. Crim. P. 35.

Criminal

Rule 32(c)(3)(D),

as applicable

to offenses

committed prior to November 1, 1987, provides that:

If the comments of the defendant and the

defendant's

counsel

information

introduced

factual

inaccuracy

investigation
report or
to

testimony or
by

in

report or

matter
as

to

determination

the

presentence

the summary

shall, as
(i)

the allegation,

or

(ii)

that

no finding

is necessary

controverted will not

account in sentencing.

record

such findings

appended to and accompany

of

presentence

A written

any copy

investigation

made available

to the

Prisons or the Parole Commission.

Fed. R. Crim. P. 32(c)(3)(D).

12

be

and determinations

shall be

thereafter

of the

make

taken into

the

any

controverted,

because the matter

of

other

them allege

part thereof, the court

each

finding

or

report

Bureau of