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No. 11-4613
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:06-cr-00151-FDW-DCK-3)
Submitted:
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
GREGORY
and
DAVIS,
Circuit
PER CURIAM:
Michael Attilio Mangarella was convicted by a jury of
conspiracy to defraud the United States, 18 U.S.C. 371 (2006),
and
multiple
counts
of
wire
fraud,
18
U.S.C.A.
1343
(West
aimed
at
U.S.
citizens.
Initially,
Mangarella
was
361
F.
App'x
475,
478-79
(4th
United States v.
Cir.
2010).
Before
remand,
the
district
court
adopted
its
previous
sentence
of
restitution
of
Because
no
count
carried
months,
in
order
to
360
$2,687,501.47
a
achieve
months,
and
well
forfeiture
statutory
that
as
of
maximum
total
as
ordering
$10
million.
equal
sentence
to
the
360
court
See
U.S.
(instructing
sentences
to
the
Sentencing
sentencing
extent
Guidelines
court
necessary
to
to
Manual
impose
5G1.2(d)
consecutive
produce
combined
On appeal, Mangarella
Mangarella
Consequently,
F.3d 517, 527-28 (4th Cir. 2005); United States v. Stewart, 256
F.3d 231, 238 (4th Cir. 2001).
the
Western
fraud
counts
District
of
involved
North
Carolina
because
Western
Union
transfers
all
the
which
wire
were
his
handwritings.
Herman
Kankrini
and
Larry
Cunningham
as government exhibits.
written the employee rules that were posted in the call center.
Cunningham identified a document as the opening pitch used when
a victim was first contacted, and said Mangarella had written
it.
by Mangarella.
now
claims
that
the
documents
containing
However,
Instead,
authenticated
handwriting
acquired
is
for
if
non-expert
genuine,
the
handwritten
based
document
testifies,
on
litigation.
is
as
here,
familiarity
Mangarella
sufficiently
also
that
that
the
was
not
asserts
that
Kankrini and Cunningham did not explain how they were familiar
with his handwriting, but the record reveals that they did.
To
the
extent
that
Mangarella
preserved
the
issue
of
authentication, it is meritless.
With
sentence
respect
under
necessitating
substantive
to
Mangarellas
deferential
consideration
reasonableness
both
the
Guidelines
range
is
the
review
standard,
procedural
sentence.
we
abuse-of-discretion
of
of
sentence,
Gall
v.
and
United
significant
procedural
error.
Id.
Mangarella
first
claims
that
the
district
court
convicted
is
responsibility
eligible
only
if
for
his
reduction
pre-trial
for
acceptance
statements
and
of
conduct
does
not
factual
burden
apply
elements
of
defendant
proof
has
to
defendant
of
guilt
at
trial.
the
burden
and
who
puts
USSG
of
denies
the
3E1.1
proving
to
the
essential
government
cmt.
the
to
n.2.
court
its
The
by
responsibility
for
his
criminal
conduct.
United
Mangarella
before
certain
trial.
The
admissions
extradited
to
argues
that
government
during
the
United
he
acknowledged
concedes
two
proffer
States.
that
his
guilt
Mangarella
sessions
However,
after
when
he
no
made
was
plea
incriminating
sessions.
statements
he
made
during
the
proffer
his first lawyer pressured him into making the proffers and that
he did so because the attorney led him to believe that he might
receive immunity from prosecution and witness protection for his
wife and children.
In
motion,
his
Mangarella
went
post-conviction
to
trial,
interview
contesting
with
the
his
probation
the
district
court
did
not
clearly
err
in
On these
denying
Mangarella
contests
the
application
of
offenses
for
which
extradition
was
granted.
See
United
States v. Rauscher, 119 U.S. 407, 430 (1886); see also Kasi v.
Angelone, 300 F.3d 487, 500 (4th Cir. 2002).
The extradition
treaty between the United States and Costa Rica incorporates the
rule of specialty.
F.3d 564, 569 (4th Cir. 2004); see also United States v. Lomeli,
596 F.3d 496, 499 (8th Cir. 2010).
Mangarella contends that sentencing enhancements that
increased his offense level above the base offense level of 7
constituted
violation
of
the
extradition
agreement
because
documents.
We
conclude
that
consideration
of
of
specialty.
See
Lomeli,
596
F.3d
at
503
(criminal
Cir.
2004)
Lazarevich,
departure
147
for
(obstruction
F.3d
child
1061,
of
justice);
1063-65
abduction
after
7
(9th
United
Cir.
conviction
States v.
1998)
for
(upward
passport
was
twenty-five
years
because
anything
more
would
One
and
conviction.
imposed
twenty
years
for
the
remaining
the
statutory
maximum
for
each
counts
of
(with
lesser
the
procedure
directed
in
USSG
5G1.2(d).
The
on
Mangarella
Apprendi
next
v.
claims
New
that
Jersey,
the
530
only
U.S.
466
permissible
enhancement was the loss amount, which was found by the jury in
a special verdict form, because the facts supporting the other
enhancements were not submitted to the jury and found beyond a
reasonable doubt.
advisory and the sentence does not exceed the statutory maximum,
8
F.3d 281, 293 (4th Cir.), cert. denied, 132 S. Ct. 111 (2011).
Sentence enhancements are generally factual issues determined by
a preponderance of the evidence.
Mangarella
also
Id.
contends
that
the
district
court
clearly erred in finding that the offense involved more than 250
victims
because
only
the
182
victims
who
filed
court
noted
that
the
evidence
claims
for
However, the
presented
at
trial
established that the offense involved far more than 250 victims.
Thousands of victim sheets with the amounts they remitted were
seized from Mangarellas call center when he was arrested.
The
the
presentence
report,
the
probation
officer
2B1.1(b)(13)(B) for
given
at
by
co-conspirator
Mangarellas
trial
Carlo
but
did
Testore.
not
Testore
mention
that
Mangarella
possessed
the
gun
in
connection
with
the
of
the
conspiracy
and
was
clearly
using
it
as
that
Testore
was
not
first
argues
of
reliability
to
support
its
Mangarella
contends
probable
accuracy
to
USSG 6A1.3(a).
that
the
government
did
not prove that he possessed the gun in connection with the mail
fraud offense.
When Mangarella
Another
$40,000
in
cash
was
seized
from
his
home.
courts
determination
that
Mangarella
possessed
the
record
investigators
discloses
and
that
the
co-conspirators
testimony
established
of
government
that
Mangarella
wrote
scripts
to
teach
employees
how
to
make
the
of
the
call
centers
as
the
He managed at least
boss,
performing
the
In another
new
call
center
with
three
partners,
where
he
represented
himself as the leader who had the knowledge, the equipment, and
the contacts.
Carter,
330
564
F.3d
below-Guidelines
sentence
reasonableness.
Cir. 2012).
325,
(4th
is
Cir.
entitled
2009).
to
Mangarellas
presumption
of
the
seriousness
of
Mangarellas
current
offense,
his
with
oral
argument
because
the
facts
and
We
legal
12