Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 CR 107-1 William T. Hart, Judge.
Before POSNER, Chief Judge, CUMMINGS, and FLAUM, Circuit Judges.
Salvi Porretta pleaded guilty to a charge of conspiring to commit crimes against the United States in violation of 18 U.S.C. sec. 371. Specifically, Porretta stole envelopes containing credit cards and other access devices from the United States mail (18 U.S.C. sec. 1708), trafficked in those unauthorized devices with intent to defraud and in so doing obtained in excess of $1,000 (18 U.S.C. sec. 1029(a)(2)), and, with intent to defraud, possessed fifteen or more unauthorized devices (18 U.S.C. sec. 1029(a)(3)). Following a sentencing hearing, Porretta was sentenced to 51 months' imprisonment followed by three years of supervised release. He was also ordered to make restitution in the amount of $40,000. In arriving at this sentence, the district judge imposed a four-level enhancement for Porretta's aggravating role as an organizer or leader of criminal activity involving five or more participants, U.S.S.G. sec. 3B1.1(a), and a two-level enhancement because Porretta's offense involved more than minimal planning, U.S.S.G. sec. 2B1.1(b)(4)(A). On appeal, Porretta challenges the district court's determination that he was an organizer or leader of criminal activity involving five or more participants. He also argues that the district court's imposition of both the aggravating role enhancement and the planning enhancement constitutes impermissible double counting. We affirm.
By virtue of his position as a fleet service clerk for American Airlines at O'Hare International Airport, Porretta had access to United States mail that was being routed from postal drops in Omaha, Nebraska to destinations in the eastern United States via O'Hare. That mail included credit cards and other access devices (e.g., ATM cards) that had been manufactured in Omaha and were being sent to cardholders. As they passed through O'Hare, Porretta stole the cards from the mail. The thefts began in approximately 1991 and continued into early 1995. During the course of this four-year period, Porretta stole in excess of 1,000 cards. The stolen cards were used without authorization and generated an aggregate loss in the vicinity of three million dollars. Porretta recruited other individuals to take the cards he had stolen, sell them and then share the proceeds with him. One such individual was Michael Stacey, who was also an airline employee at O'Hare, another was co-defendant Vince Randazzo. *fn1
In a written plea agreement dated April 1, 1996, Porretta expressly admitted that he "conspired and agreed with co-defendant Vincent Randazzo, Michael Stacey, and other individuals to violate the laws of the United States by (1) stealing and taking letters out of [the] U.S. mail . . .; (2) knowingly and with the intent to defraud trafficking in stolen credit cards . . .; and (3) knowingly and with the intent to defraud possessing more than fifteen stolen credit cards." (Record # 78 at 3). Porretta also admitted that he "asked other individuals to traffic in the stolen credit cards and access devices . . . [and that] these individuals, including Michael Stacey and Randazzo, agreed to traffic in stolen credit cards and access devices." Id. at 4. The plea agreement also provided that Porretta and the government were in accord that "Pursuant to Guideline Section 3B1.1(a), the offense level should be increased an additional four (4) levels because defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Id. at 9. Porretta and the government also agreed that in the event that Guideline Section 2B1.1(b)(4)(B) (providing for a four-level enhancement if the offense involves receiving and selling stolen property) was found to be inapplicable, then the offense level should be increased two levels pursuant to Guideline Section 2B1.1(b)(4)(A) because Porretta's offense involved more than minimal planning. Id.
Following the entry of Porretta's plea agreement, the probation officer submitted a preliminary presentence investigation report ("PSI"), to which a copy of the government's version of the offense conduct was attached. In detailing the alleged facts surrounding Porretta's offense, the government recited the information set out above concerning Porretta, Michael Stacey and Vince Randazzo. The government also stated that in his plea agreement Vince Randazzo admitted to having been asked by Porretta to traffic in stolen credit cards, to sell the cards to other people, and to share the proceeds of the sales with him. Vince Randazzo admitted to receiving at least eighty-two credit cards from Porretta. Vince sold a number of the cards (approximately twenty) to his sister, co-defendant Maria Barone Randazzo, and also sold approximately twenty-two to his wife, co-defendant Carol Randazzo, who used some cards herself and sold the others. The government further noted that in her plea agreement Carol Randazzo admitted that on one occasion she accepted between four and eight stolen credit cards directly from Porretta. Vince and Carol sold a number of the credit cards they received from Porretta to Carol's mother, co-defendant Maryann Czerlanis.
The preliminary PSI also included the probation officer's calculation of the applicable sentencing range. In relevant part, the probation officer found that more than minimal planning was involved in the offense (see U.S.S.G. sec. 2B1.1(b)(4)(A)), but since she also found that Porretta had received and sold stolen property (see U.S.S.G. sec. 2B1.1(b)(4)(B)) and was therefore deserving of a four-level enhancement, she did not recommend the two-level enhancement for more than minimal planning because these two enhancement provisions are to be applied in the alternative. The probation officer also recommended a four-level enhancement for Porretta's aggravating role in the offense pursuant to U.S.S.G. sec. 3B1.1(a), *fn2 noting that "[t]he defendant is the most culpable individual involved in the conspiracy. [He] stole the credit cards and sold them to Vince Randazzo and others. The offense also involved at least five participants." Porretta filed no objections to the preliminary PSI and on June 28, 1996, the PSI was submitted to the district court as the final PSI.
Prior to the sentencing hearing, Porretta filed three objections to the Sentencing Guidelines calculations in the PSI: (1) He objected to the amount of loss calculation; (2) he argued that he had not received stolen property and therefore the four-level enhancement under sec. 2B1.1(b)(4)(B) should not apply; and (3) he argued that his offense level should not be enhanced for his role in the offense. The first two of these objections were taken up at the sentencing hearing on July 9, 1996, wherein the district court overruled Porretta's first objection (amount of loss) and sustained the second, finding sec. 2B1.1(b)(4)(B) inapplicable. However, as provided in the plea agreement, the court then increased the offense level by two levels for more than minimal planning pursuant to sec. 2B1.1(b)(4)(A). When asked if there was anything else, Porretta's counsel did not pursue his third written objection concerning the aggravating role enhancement. Thereafter, as already noted, the court imposed a sentence of 51 months' imprisonment followed by three years of supervised release, and directed Porretta to make restitution in the amount of $40,000.
One week later, Porretta filed a motion captioned "Motion for Correction of Sentence" in which he argued that imposition of both the planning enhancement and the aggravating role enhancement constituted impermissible double counting and that, in any event, the four-level aggravating role enhancement was inapplicable because Porretta did not have control over four other participants in the offense. The district court denied the motion, stating in relevant part: "Evidence supported that [Porretta] was an organizer/leader and it was not improper double counting to enhance for both that and more than minimal planning. See United States v. Michalek, 54 F.3d 325, 334 n.14 (7th Cir. 1995); United States v. Harris, 41 F.3d 1121 (7th Cir. 1994)." (Record # 104). In this appeal, Porretta presses the same two sentencing objections.
We begin by considering Porretta's contention that the district court erred in imposing a four-level enhancement for his role as an organizer/leader of criminal activity involving five or more participants, for if Porretta is correct on this score his second contention -- namely, that it was improper to apply both the organizer/leader enhancement and the minimal planning enhancement -- falls by the wayside. At the outset, we must determine the proper standard of review. Ordinarily, a district court's determination as to the defendant's role in the offense is reviewed for clear error. See United States v. House, 110 F.3d 1281, 1283 (7th Cir. 1997); United States v. Hogan, 54 F.3d 336, 340 (7th Cir. 1995). ...