United States v. Yannott

541 F.3d 112 (2nd Cir. 2008)

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Nature of the Case

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Facts

The government indicted D and his co-defendants, John Gotti Jr., and Louis Mariani, alleging that they were members of the Gambino Crime Family. Testimony against D was given by former members of the crime family as well as police officers. The jury convicted D of engaging in the RICO conspiracy on Count Two. The district court sentenced D and concluded that conduct which the jury had not found proven by the government should, nevertheless, be considered in calculating his applicable Guidelines range. The court determined that because one of the prosecution's witnesses on this point was credible and corroborated by another, only slightly less credible, witness, D's participation in the attack on Sliwa was supported by a preponderance of the evidence. Thus, D's involvement in the Sliwa activity could be considered relevant conduct for sentencing purposes. The court calculated Di's offense level at 36 and his Criminal History Category at Level II, resulting in a Guidelines range of 210 to 262 months. It then sentenced him to the statutory maximum of 240 months' imprisonment, noting that D had been a long-time associate of the Gambino Family and had engaged in extensive illegal and violent conduct in furtherance of that enterprise. This appeal followed.