13‐625‐cr
United States v. DelGiorno
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 TO 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 27th day of March, two thousand
fourteen.
1 PRESENT: CHESTER J. STRAUB,
2 ROBERT D. SACK,
3 RAYMOND J. LOHIER, JR.,
4 Circuit Judges.
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6
7 United States of America,
8
9 Appellee,
10
11 v. No. 13‐625‐cr
12
13 John J. DelGiorno,
14
15 Defendant‐Appellant.
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The Clerk of Court is respectfully directed to amend the official caption to
conform with the above.
1 FOR APPELLANT: Marc Craig Gann, Collins, McDonald & Gann,
2 P.C., Mineola, NY.
3
4 FOR APPELLEE: Allen L. Bode, Assistant United States Attorney
5 (Jo Ann M. Navickas, on the brief), for Loretta E.
6 Lynch, United States Attorney for the Eastern
7 District of New York, Brooklyn, NY.
8
9 Appeal from a judgment of the United States District Court for the Eastern
10 District of New York (Leonard D. Wexler, Judge).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the judgment of the District Court is AFFIRMED.
13 Defendant‐appellant John J. DelGiorno appeals from the District Court’s
14 judgment of conviction entered February 12, 2013. On appeal, DelGiorno argues
15 that his sentence was procedurally and substantively unreasonable. We assume
16 the parties’ familiarity with the facts and record of the prior proceedings, to
17 which we refer only as necessary to explain our decision to affirm.
18 We review sentences for unreasonableness. See United States v. Cavera,
19 550 F.3d 180, 187 (2d Cir. 2008) (en banc). This standard “applies both to ‘the
20 sentence itself’ and to ‘the procedures employed in arriving at the
21 sentence.’” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008)
22 (quoting United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006)). The
23 procedural inquiry focuses on whether the District Court committed a
24 “significant procedural error, such as failing to calculate (or improperly
25 calculating) the Guidelines range, treating the Guidelines as mandatory, failing
26 to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
27 erroneous facts, or failing to adequately explain the chosen sentence.” United
28 States v. Dorvee, 616 F.3d 174, 179 (2d Cir. 2010) (quotation marks omitted). The
29 substantive inquiry assesses “the length of the sentence imposed in light of the [§
2
1 3553(a)] factors.” United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007). In
2 both its procedural and substantive aspects, reasonableness review employs a
3 “deferential abuse‐of‐discretion standard.” Gall v. United States, 552 U.S. 38, 41
4 (2007).
5 DelGiorno argues that the District Court erred procedurally by failing to
6 (1) calculate the applicable Guidelines range, (2) properly consider the § 3553(a)
7 factors, and (3) adequately explain the sentence imposed. DelGiorno’s claims are
8 without merit. We address each argument in turn.
9 First, the District Court satisfied its obligation to calculate the applicable
10 Guidelines range. The presentencing submissions reviewed by the District
11 Court, including the Presentence Report (“PSR”), along with both parties’
12 statements at sentencing, uniformly articulated the correct Guidelines range. At
13 sentencing, the District Court stated that it was “not going to give [DelGiorno] 97
14 months” (the bottom of the applicable Guidelines range), but would instead
15 impose a below‐Guidelines sentence. And the court’s Statement of Reasons
16 (“SOR”) explicitly adopted the PSR’s findings, including its accurate Guidelines
17 calculation. Although the District Court failed to satisfy the mandate of 18 U.S.C.
18 § 3553(c), because it did not “state in open court the reasons for its imposition of”
19 the non‐Guidelines sentence, DelGiorno did not object to its failure and, hence,
20 we review for plain error and conclude that the omission was harmless. See
21 United States v. Molina, 356 F.3d 269, 276‐78 (2d Cir. 2004).
22 Second, although we affirm on the issue of the District Court’s
23 consideration of the § 3553(a) factors, we note some troubling circumstances. At
24 DelGiorno’s plea hearing, the District Court made an “agreement” with
25 DelGiorno:1 the court would “adjourn[] this case for two years” and DelGiorno
1 There is evidence that this “agreement” was reached prior to the plea. In a
3
1 would be sentenced to “no jail” if he did “not get into any trouble whatsoever.”
2 If DelGiorno did get into trouble, he would be “going to jail.” At sentencing, the
3 District Court considered that DelGiorno was “part of a program of mine” and
4 that the consequence the court had outlined for violating the terms of the
5 program was “going to jail.” The District Court then noted that DelGiorno
6 “made a commitment to me and I’ll live up to that commitment, not to the
7 degree that I should, but I’m going to punish you because you failed.”
8 We have previously held that where a specific sentence “had an air of
9 inevitability,” we would find “procedural error” if the record “is ambiguous” as
10 to whether the District Court considered the Section 3553 factors. United States
11 v. Corsey, 723 F.3d 366, 375‐76 (2d Cir. 2013). Here, however, the record is not
12 ambiguous because the District Court provided an explanation for the sentence
13 in terms of the § 3553(a) factors in its SOR. Moreover, DelGiorno made no
14 objection at sentencing, so we review for plain error. See Fed. R. Crim. P. 52(b).
15 On this record, we can not say that the District Court plainly failed to consider
16 the § 3553(a) factors.
17 Third, the District Court did not otherwise fail to adequately explain the
18 sentence imposed. The District Court explained that DelGiornio’s sentence was
19 justified by, among other things, his repeated violation of pretrial release
20 conditions. See App’x 29‐30. The District Court also explained that, despite
letter to the court, defense counsel stated that the sentence was discussed “[p]rior
to the plea being taken.” Moreover, at the plea hearing itself, before placing the
agreement on the record, the court asked DelGiorno whether “anyone made any
promises to you as to what your sentence will be other than what I am going to
put on the record eventually?” Federal Rule of Criminal Procedure 11(c)(1)
provides that “[t]he court must not participate” in plea negotiations. This issue is
not before us, however, so we do not reach it.
4
1 these failures, DelGiorno’s below‐Guidelines sentence was justified given his
2 young age and various other mitigating circumstances set out in DelGiorno’s
3 pre‐sentencing submissions.
4 Finally, DelGiorno offers no argument for why his substantially below‐
5 Guidelines sentence was substantively unreasonable. In any event, we conclude
6 that DelGiorno’s sentence was not substantively unreasonable.
7 We have considered DelGiorno’s remaining arguments and conclude that
8 they are without merit. For the foregoing reasons, the judgment of the District
9 Court is AFFIRMED.
10
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk of Court
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