Submitted May 14, 2015.
Appeal from United States District Court for the District of Nebraska - Omaha.
For United States of America, Plaintiff - Appellee: Douglas Richard Semisch, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE.
Lamar Bertucci, Defendant - Appellant, Pro se, Walthil, NE.
For Lamar Bertucci, Defendant - Appellant: Richard Haile McWilliams, Assistant Federal Public Defender, Federal Public Defender's Office, Omaha, NE.
Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
SMITH, Circuit Judge.
Lamar Bertucci pleaded guilty to killing a bald eagle and a rough-legged hawk, in violation of 16 U.S.C. § § 668(a), 703, and 707. The district court sentenced Bertucci to a total of eight months' imprisonment, imposed a $6,500 " financial obligation," and additionally imposed a condition of supervised release that requires Bertucci to participate in anger-management counseling. Bertucci appeals the district court's sentencing decisions, arguing that the district court procedurally erred in its application of the Guidelines, lacked authority to issue the " financial obligation," and abused its discretion by requiring anger-management counseling. For the reasons stated herein, we vacate Bertucci's sentence and remand for resentencing.
In early 2014, a grand jury returned an indictment against Bertucci charging him with shooting and killing a bald eagle and a rough-legged hawk, in violation of 16 U.S.C. § § 668(a), 703, and 707. Bertucci pleaded guilty to the offenses, and the district court ordered the preparation of a presentence investigation report (PSR).
The PSR concluded that Bertucci had a criminal history score of two and that his total offense level was ten. The PSR incorporated
a four-level enhancement under Guidelines § § 2Q2.1(b)(3)(A)(ii) and 2B1.1(b)(1)(C) on the basis that the total " loss" amounts for the eagle and hawk exceeded $10,000 but did not exceed $30,000. The PSR also incorporated a two-level enhancement under Guideline § 2Q2.1(b)(1)(B) for a " pattern of similar violations" because Bertucci was convicted in 2009 for possession of bald eagle feathers, in violation of § 668(a). In discussing Bertucci's alleged prior criminal conduct, the PSR also included several paragraphs focusing on previous assaults that Bertucci had allegedly committed.
Bertucci objected to both enhancements, as well as to the allegations of assault. Bertucci's objections focused on the PSR's allegedly erroneous $10,000 valuation of the bald eagle. In that regard, Bertucci emphasized that both the government and the district court had adopted a mere $2,000 valuation for bald eagles in the 2009 prosecutions of both him and his brother. Bertucci also focused on the PSR's allegations of assault, which Bertucci asserted were factually baseless. As Bertucci noted in his objections, charges relating to the assault allegations were either dismissed or never filed at all.
The district court ultimately denied Bertucci's objections and sentenced him to a total of eight months' imprisonment with one year of supervised release. The court imposed a special condition of supervised release that requires Bertucci to " attend, successfully complete, and pay for any diagnostic evaluations and treatment or counseling programs for anger management [to include a domestic violence component or a batterer's awareness program as deemed necessary] as directed by the probation officer." (Emphasis omitted.) In addition, the court imposed a " financial obligation" on Bertucci " in the amount of $5000.00 for the eagle and $1500.00 for the hawk for a total amount of $6500.00."
Bertucci argues on appeal that the district court committed multiple procedural errors with respect to its application of the Guidelines. Bertucci also argues that the $6,500 " financial obligation" was, in reality, an order for restitution, which the district court lacked authority to order in this case. Finally, Bertucci argues that the district court had an insufficient factual basis to require anger-management counseling.
In reviewing Bertucci's sentence, we " must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the district court committed no procedural error, we then " consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. Similarly, " [w]e review the district court's imposition of the terms and conditions of supervised release for an abuse of discretion." United ...