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December 3, 2012

Notable (and very unusual?) Third Circuit order vacating (unpublished) sentencing affirmance

The-Crew-the-sopranos-449813_1024_768Today in this one-page pubslihed order in United States v. Passalaqua (No. 11-4244), the Third Circuit had this to say: "At the direction of the Court, the opinion and judgment filed November 29, 2012 are hereby vacated. The case will be submitted to a reconstituted merits panel for disposition." It struck me as notable to see an opinion and judgment in a criminal case filed just two business days earlier getting vacated and resubmitted to a new panel. I tracked down the November opinion, which was unpublished and available at this link, at it is itself notable for both its facts and the issue on appeal. Here is a bit of the story from the original (and now vacated) panel decision in Passalaqua:

In this appeal we are asked to consider the substantive reasonableness of Joseph Passalaqua’s sentence of 190 months for conspiracy to commit robbery in violation of the Hobbs Act. For the reasons set forth below, we will affirm....

At the time of his sentencing, Passalaqua was a 57-year-old college graduate, former champion gymnast, and owner of a gymnastics, dance, and karate school.  

Between December 2008 and September 2009, Passalaqua was a leader of a conspiracy that was responsible for a string of armed robberies and burglaries in New Jersey and New York. Passalaqua was arrested on September 23, 2009, after he was recorded by a confidential source agreeing to murder three individuals in exchange for a cash payment. Soon after his arrest, Passalaqua began cooperating with the Government, which led to the arrest of several of his co-conspirators. The information that Passalaqua provided revealed his involvement in multiple robberies and burglaries, all of which involved restaurants or the homes of restaurant owners. In each robbery, masked intruders entered at night, bound the victims at gunpoint, and stole money and valuables totaling approximately $215,000. Passalaqua did not enter the premises, handle firearms, or restrain victims, but he identified the victims, planned each of the robberies, and served as the getaway driver in three robberies. Passalaqua chose each restaurant-victim based on a personal vendetta against its owner, such as an unpaid debt or personal conflict.  However, Passalaqua initially lied about his involvement in the armed robbery of Barolo Restaurant in New York, later contending that he believed the restaurant “was connected to the mob and [had] fear of retribution.” (App. 120.) The lie damaged the Government’s case and prevented it from using Passalaqua as a witness against his co-conspirators....

At his sentencing hearing, which began in June 2011, Passalaqua requested a reduced weapons-based enhancement, which would lower the total offense level to 30. The Government agreed that an offense level of 30 was appropriate based on the facts stipulated in the plea agreement. Passalaqua also requested a downward departure based on imperfect cooperation and argued about unreasonable disparity between his own and his co-defendants’ sentences. The Government, on the other hand, requested an upward variance to the statutory maximum sentence of 20 years based on the violent nature of the offenses and the understated criminal history calculation. The District Court rejected Passalaqua’s arguments about unreasonable disparity, finding Passalaqua’s conduct more serious than that of his co-conspirators and that he had been a leader of the conspiracy. The Court also rejected Passalaqua’s request for an imperfect cooperation departure, finding insignificant benefit for the Government from his cooperation.

There was a lengthy colloquy between the District Court and both parties about the propriety of the Government’s request for the upward variance given the initial plea agreement, in which the Government agreed to not request an upward variance. The District Court continued the sentencing hearing for three months in order to hear from the Assistant U.S. Attorney who had agreed to the November plea agreement. Ultimately, the District Court found the Government’s request was appropriate and provided Passalaqua an opportunity to withdraw his plea, which he declined. The Court also emphasized prior to imposing its sentence that it would have imposed the same sentence regardless of whether the Government had requested an upward variance....

[After] considering the § 3553(a) factors...[t]he District Court then varied from the Guideline range and sentenced Passalaqua to 190 months and three years of supervised release.

I found this matter blogworthy in part because the underlying facts seem a bit like the script from some lost episode of The Sopranos.  And, pop culture references aside, I am now very curious about the back-story leading the Third Circuit so quickly to vacate its opinion and judgment affirming the substantive reasonableness of Joseph Passalaqua's sentence and resubmit this matter to a new panel.  I would guess (and probably hope) that there is an innocent explanation here.  The again, who knows what might lead Paulie Walnuts to go a little crazy and try to exert some sway on a circuit ruling he does not like.

December 3, 2012 at 03:57 PM | Permalink

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Comments

Nothing much here. One of the judges on the orignial panel should have been recused and made an innocent mistake. Once it was brought to the Court's attention they did the right thing.

Posted by: Jack | Dec 4, 2012 6:57:07 AM

The appellant probably filed a "petiton for rehearing" and pointed out an error or some newly applicable case for the panel to withdraw and reconsider the briefs

Posted by: ac | Dec 4, 2012 9:50:24 AM

Well personally i consider "unpublished decisons" no decision at all. If it's so messed up you can't be bothered with telling the world. Keep your mouth and your decison shut!

Posted by: rodsmith | Dec 4, 2012 10:39:03 AM

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