12-4723-cr
U.S. v. Brudi
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of October, two thousand thirteen.
PRESENT: GERARD E. LYNCH,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 12-4723-cr
WERNER BRUDI,
Defendant-Appellant,
_________________________________________
FOR APPELLANT: DEVIN MCLAUGHLIN, Langrock, Sperry, & Wool, LLP,
Middlebury, Vermont.
FOR APPELLEE: ARLO DEVLIN-BROWN, Assistant United States Attorney (Michael
A. Levy, Assistant United States Attorney, on the brief), for Preet
Bharara, United States Attorney for the Southern District of New
York, New York, New York.
Appeal from a judgment of the United States District Court for the Southern District of
New York (J. Paul Oetken, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Werner Brudi appeals from the district court’s concurrent sentences
of 24 months’ imprisonment following his plea of guilty to two counts of wire fraud in violation
of 18 U.S.C. § 1343, and two counts of mail fraud in violation of 18 U.S.C. § 1341, in
connection with a Ponzi scheme that defrauded elderly investors of hundreds of thousands of
dollars. On appeal, Brudi argues that his sentence was both substantively and procedurally
unreasonable. We assume the parties’ familiarity with the underlying facts, procedural history,
and issues on appeal.
We review a district court’s sentence to ensure that it is both procedurally and
substantively reasonable. United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
A district court errs procedurally by, among other things, miscalculating the applicable
sentencing guideline range or giving insufficient consideration of the factors set out in 18 U.S.C.
§ 3553(a). See id. at 190. A district court’s sentence is substantively unreasonable only if it
“cannot be located within the range of permissible decisions.” Id. at 189 (internal quotation
marks omitted).
Brudi argues that his sentence was procedurally unreasonable because the district court
failed to consider the immigration consequences of his conviction. But at Brudi’s sentencing
hearing, the district court expressly inquired about Brudi’s possible deportation, asking if it was
“pretty much certain” that Brudi would be removed to Germany. Although the district court did
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not later mention deportation as a factor influencing its ultimate sentence, it was not required to
do so. As we explained in United States v. Fernandez, “we will not conclude that a district judge
shirked her obligation to consider the § 3553(a) factors simply because she did not discuss each
one individually or did not expressly parse or address every argument relating to those factors
that the defendant advanced.” 443 F.3d 19, 30 (2d Cir. 2006). Here, the record demonstrates
that the district court understood that Brudi would be deported after he finished his sentence, but
was influenced more powerfully by other factors when determining Brudi’s sentence.
Brudi next argues that his sentence was substantively unreasonable. It was not. Brudi
does not dispute the district court’s calculation that the Sentencing Guidelines recommended a
sentence of 33 to 41 months. The district court explained that although Brudi’s clean record,
advanced age, and his dependent wife’s ill health militated against a lengthy period of
incarceration, he still had committed a “serious crime,” defrauding close friends, several of
whom appeared at the sentencing hearing to urge a severe sentence, of their life savings. Given
these competing equities, the court imposed a below-guidelines sentence that still required the
defendant to spend some time in prison. Under these circumstances, we cannot conclude that the
district court abused its discretion.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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