878 F. 2d 1439 - United States v. D'Arelli

MEMORANDUM*

Frank David D'Arelli appeals his sentence imposed pursuant to his plea of guilty to wire fraud (18 U.S.C. Sec. 1343), interstate transportation of forged securities (18 U.S.C. Sec. 2314), and conspiracy (18 U.S.C. Sec. 371). D'Arelli contends that his sentence of 30 years imprisonment, $1,164.617 restitution, and a $6.25 million fine breached his plea agreement and violated the eighth amendment's prohibition against cruel and unusual punishment. We vacate and remand on count 32 on the ground that the plea agreement was breached. We affirm on all other counts.

"Plea agreements are subject to contract-law standards of interpretation." United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir.), cert. denied, 479 U.S. 819 (1986). To determine whether a sentence complies with the terms of a plea agreement, we look to what was reasonably understood by the defendant when he entered his plea. Id. The government is held to the literal terms of a plea agreement. United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984).

D'Arelli's plea agreement stipulated that he would be sentenced to "no greater than 30 years total incarceration" in regard to counts 1 through 31 of the indictment, and five years probation on count 32. The district court, after accepting the plea pursuant to Federal Rule of Criminal Procedure 11(e)(3), sentenced D'Arelli to 25 years incarceration on counts 1 through 31 and five years incarceration on count 32. The sentence on count 32 is inconsistent with the plea agreement because D'Arelli received incarceration rather than probation on count 32. We vacate the judgment on that and remand with instructions that the district court resentence D'Arelli on count 32 in accordance with the terms of the plea agreement.

We review sentences imposed within the statutory limits for abuse of discretion. United States v. Endicott, 803 F.2d 506, 510 (9th Cir.1986). Disparity in the sentences imposed upon codefendants does not indicate that the district court abused its discretion. Id. Disparate sentences for codefendants will be upheld when justified by a record of differences in the defendant's behavior. Cocio v. Bramlett, 872 F.2d 889, 894 (9th Cir.1989).

D'Arelli was sentenced to 30 years imprisonment, $1,164,617 restitution, and a $6.25 million fine. Codefendant Cooper was sentenced to eight years incarceration, five years probation, $20,000 restitution and a $250 fine. Codefendant Tonnessen was sentenced to six months incarceration, five years probation, $30,000 restitution, and a $50 fine. The district court stated that D'Arelli was sentenced more heavily because he continued his involvement in illegal activity after his indictment and led and encouraged his codefendants into participating in illegal schemes. We conclude that the disparity in the sentences is justified. III. Proportionality of Sentence to Offense

To determine whether a sentence is proportional to an offense as required by the eighth amendment, we first consider the harshness of the penalty in light of the gravity of the offense. Solem v. Helm, 463 U.S. 277, 290-91 (1983). D'Arelli's criminal conduct was intentional, the dollar amount of the loss he caused was great, and he reaped great benefit from his conduct. Id. Moreover, D'Arelli's 30 year sentence is susceptible to parole. See id. at 297, 300-303. Also, the incarceration and the fine imposed by the trial court were within statutory limits. See id. at 290 (substantial deference to legislative determinations of punishment and to trial court's sentencing discretion); Endicott, 803 F.2d at 510 (sentence within statutory limits generally not subject to review). The order of restitution, based on the indictment, was properly awarded and therefore cannot be considered disproportionate. See United States v. Feldman, 853 F.2d 648, 663-64 (9th Cir.1988), cert. denied, 109 S.Ct. 1164 (1989). We conclude the sentence was not unduly harsh in relation to D'Arelli's offenses.

Under Solem we may also consider the sentences imposed on other criminals in the federal system. 463 U.S. at 291. D'Arelli was sentenced to 30 years after pleading guilty to twenty-five counts. In Kamer, the defendant was sentenced to three years after pleading guilty to three counts of an indictment charging mail and wire fraud and conspiracy. 781 F.2d at 1386. Taking into account the magnitude of the respective offenses pled to, the sentences in the two cases are comparable. D'Arelli's sentence did not violate the eighth amendment.

AFFIRMED on counts 1 through 13, 15, 16, 20, 23, and 26 through 31; VACATED and REMANDED on count 32.