The opinion of the court was delivered by: ALFRED J. LECHNER, JR.
After a jury trial, defendant David Colletti ("Colletti") was found guilty on two counts of a three-count indictment. After sentencing, Colletti appealed to the Third Circuit. The Third Circuit vacated the sentence and remanded the case for resentencing. Currently before the court is the issue of Colletti's resentencing.
On 31 October 1990, the Grand Jury returned a three count indictment (the "Indictment") against Colletti and three codefendants, Joseph Shea ("Shea"), Kevin Kelly (collectively, the "Defendants") and Donald Uhler ("Uhler"). Counts One and Two of the Indictment charged Defendants knowingly and willfully conspired to transport and did transport in interstate commerce stolen diamonds in violation of 18 U.S.C. § 2314 and § 2. Only Uhler, who pleaded guilty on 9 January 1991, was charged in Count Three. On 7 February 1991, the jury returned a verdict finding Defendants guilty on Counts One and Two.
On 9 May 1991, Colletti was sentenced (the "1991 Colletti Sentencing") in accordance with United States Sentencing Commission Guidelines Manual (the "Sentencing Guidelines").
The sentence was imposed pursuant to a pre-sentence report (the "Pre-Sentence Report"), prepared by the United States Probation Office (the "Probation Office") on 8 March 1991, revised by the Probation Office on 29 April 1991, and further revised at sentencing. The Pre-Sentence Report included the following calculations:
Offense Level Computation
22. Base Offense Level: Count 1 and 2 involve the same offense conduct, therefore, they are grouped together pursuant to 3D1.2(b)(1).
23. The guideline for an 18 U.S.C. § 2314 offense is found in Section 2B1.2 of the Guidelines. The base offense level is 4.
24. Specific Offense Characteristic: The loss from the value of the diamonds is $ 626,000. It is noted that the diamonds were already in the retail market, therefore, the retail loss applies. Pursuant to Section 2B1.1(b)(1)(K), the base offense level is increased by 10.
25. Since the offense involved more than minimal planning, in that the defendant pointed out and identified the courier by the description of the individual, the vehicle, and the license plate, the base offense level is increased by 2. Section 2B1.2(b)(4).
26. Adjustment for Role in the Offense: The defendant abused a position of private trust in that at the time of the offense, Colletti was employed by a diamond remount firm, which did independent work at various Kaye Jewelers stores. Colletti provided co-defendant Shea with a description of the courier's vehicle, license plate, and the general type/quality of the merchandise that would be transported, therefore, enabling the plan to rob jewelry couriers to be carried out. Colletti's position of trust contributed in a substantial way to the facilitation of this crime. Pursuant to Section 3B1.3, the offense level is increased by 2.
27. Victim Related Adjustment: the victim was physically restrained in that the courier was forced at gunpoint into the backseat of his vehicle and his hands were bound with plastic flexcuffs. Pursuant to Section 3A1.3, the offense level is increased by 2.
28. Adjustment for Obstruction of Justice: None 29. Adjusted Offense Level (Subtotal): 20
30. Adjustment for Acceptance of Responsibility: Colletti denies any involvement in this offense and accepts no responsibility for his actions. Therefore, the offense level is not reduced.
Pre-Sentence Report at 6-7. At sentencing, the Government objected to the Pre-Sentence Report because no adjustment had been made to reflect Colletti's perjury at trial. It was determined the sentence should be enhanced, pursuant to Section 3C1.1,
for obstruction of justice. Sentencing Tr. at 31. Colletti's total offense level was 22. His criminal history category was I. Accordingly, the guideline range was 41 to 51 months. Colletti was sentenced to a term of incarceration of 51 months.
After sentencing, Defendants appealed. Among other things, Colletti appealed the imposition of the two point enhancement for obstruction of justice based on the finding that he perjured himself at trial. The case was before this court pursuant to the decision of the Third Circuit in United States v. Colletti, 984 F.2d 1339 (3d Cir. 1992), which remanded for resentencing.
In considering Colletti's motion, the Third Circuit declined to rely on the Fourth Circuit's decision in United States v. Dunnigan, 944 F.2d 178, reh'g denied, 950 F.2d 149 (1991), cert. granted, U.S. (1992), which held that a sentencing court should not apply an enhancement for obstruction of justice simply because the court does not credit the defendant's testimony. The Third Circuit reasoned:
Because the case is being remanded for resentencing for other reasons discussed below, and because having granted certiorari in the Dunnigan case, the Supreme Court will presumably be resolving the question in the reasonably near future, we deem it unnecessary to express a firm view on the subject at this time. Some brief discussion of the issue may, however, be of assistance to the district court on remand.
Colletti, 984 F.2d at 1347.
The Third Circuit stated that a defendant is not subject to an enhancement merely because he takes the stand, denies his guilt under oath and the jury disbelieves him. Id. at 1348. In dicta, the Circuit observed that: "something more is required, and the issue is how to define the 'more.'" Id. The Circuit further observed that:
In our view, in order to warrant the two point enhancement for obstruction of justice, the perjury of the defendant must not only be clearly established, and supported by evidence other than the jury's having disbelieved him, but also must be sufficiently far-reaching as to impose some incremental burdens upon the Government, either in investigation or proof, which would not have been necessary but for the perjury.
The Third Circuit acknowledged that the findings made at the 1991 Colletti Sentencing could
be interpreted as expressing the court's view that Colletti did "more" than merely deny his guilt. On the other hand, these statements can fairly be interpreted, as merely confirming that the judge, as well as the jury, disbelieved Colletti's testimony. There was no finding - and the Government has not argued - that Colletti advanced some elaborate tissue of falsehoods which required significant additional effort on the part of the Government to dispel. . . . We do not rule out the possibility that the record may justify appropriate findings in support of the enhancement for obstruction of justice . . . .
Id. Nevertheless, the Circuit remanded the case for resentencing to clarify the reasons for enhancement, in light of the anticipated Supreme Court decision in Dunnigan.
The Circuit also vacated the Restitution Order, and remanded the issue of restitution for reconsideration. In so holding, the Circuit stated resentencing was required to clarify whether Colletti's ability to pay was ...