Because of the possibility on remand that the government may be able to provide reliable evidence, we address the government's assertion that membership in organized crime is a permissible basis of departure under the Guidelines. The government again relies on Fatico and directs the court's attention to United States v. Schweihs, 733 F. Supp. 1174 (N.D.Ill. 1990), appeal filed, (7th Cir. Feb. 22, 1990). In Schweihs, the government also relied on preguidelines cases in support of its request for upward departure based on a defendant's ties to organized crime.
In this sense, the RICO Guideline addresses the defendant's Mafia membership. The applicability of the RICO Guideline in this case contrasts with the pre-Guidelines case of United States v. Fatico, 458 F. Supp. 388, 413 (E.D.N.Y. 1978) (defendant convicted of hijacking of trucks in violation of 18 U.S.C. § 371), and the Guidelines analysis done in United States v. Schweihs, 733 F. Supp. 1174, 1178-79 (N.D.Ill. 1990) (defendant convicted of extortion, conspiracy to commit extortion, and solicitation of a crime of violence in violation of 18 U.S.C. § 1951(a); (b)(2); and 373(a)). In both of these cases, the pattern of criminal acts that LCN membership represents was not implicated in the defendants' counts of conviction. Fatico, 458 F. Supp. at 413; Schweihs, 733 F. Supp. at 1178-79.
The government notes that this court has found and the Seventh Circuit has approved the assessment of an upward departure for use of a defendant's organized crime connections to further his criminal activities. See United States v. Schweihs, 733 F. Supp. 1174 (N.D.Ill. 1990), aff'd in part and rev'd in part, 971 F.2d 1302 (7th Cir. 1992). However, this court's determination in Schweihs that such an upward departure was appropriate does not necessarily mean that such a determination is appropriate in this instance.
The government notes that this court has found and the Seventh Circuit has approved the assessment of an upward departure for use of a defendant's organized crime connections to further his criminal activities. See United States v. Schweihs, 733 F. Supp. 1174 (N.D.Ill. 1990), aff'd in part and rev'd in part, 971 F.2d 1302 (7th Cir. 1992). However, this court's determination in Schweihs that such an upward departure was appropriate does not necessarily mean that such a determination is appropriate in this instance.
Judge Williams also increased Schweihs' offense level by four levels for being a leader of criminal activity involving five or more participants, as prescribed in U.S.S.G. § 3B1.1(a). U.S. v. Schweihs, 733 F. Supp. 1174, 1179-80 (N.D.Ill. 1990). Judge Williams based this conclusion on evidence from the videotaped conversations.
As the past tense adjective "expunged" indicates, § 4A1.2(j) prohibits a sentencing court from counting convictions that have been invalidated prior to their use as sentencing factors. See, e.g., United States v. Schweihs, 733 F. Supp. 1174, 1176-77 (N.D. Ill. 1990) ("expunged conviction" in § 4A1.2(j) is "a conviction that has been reversed"). In view of the fact that the Sentencing Commission specifically stated in § 4A1.2(j) of the Guidelines that already-expunged convictions must not be counted in the Criminal History Score, it is impossible to believe that the Commission would relegate to a single sentence in an Application Note the much more extraordinary authority to invalidate state convictions.
We are aware of several federal cases which have indicated that in appropriate circumstances, membership in an organized crime syndicate provides a basis for departing from federal sentencing guidelines. None of these cases discuss the constitutional issues raised by Smith. See United States v. Schweihs, 733 F. Supp. 1174, 1179 (N.D. Ill. 1990) (defendant's sentence was not enhanced because of his membership in organized crime, but, rather, because he "used that association to carry out the crimes of which he has been convicted."); United States v. Sweeting, 933 F.2d 962, 966 (11th Cir. 1991) (defendant shown to be a member of a violent street gang responsible for drive-by shooting; aggravating circumstances included . . . "the criminal purpose in possessing the firearms to carry on the activities of their narcotics trafficking gang . . ."). Affirmed.