11‐4479‐cr
United States v. Ryan
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2015
No. 11‐4479‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
MATTHEW JOHN RYAN,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Northern District of New York
SUBMITTED: OCTOBER 23, 2015
DECIDED: NOVEMBER 25, 2015
Before: KEARSE, WALKER, and CABRANES, Circuit Judges.
On appeal from an October 12, 2011 judgment of the United
States District Court for the Northern District of New York (Norman
A. Mordue, Judge) sentencing defendant‐appellant Matthew John
Ryan principally to a term of imprisonment of 121 months, Ryan
challenges the District Court’s calculation of the number of victims
of his crime and the substantive reasonableness of his sentence. We
conclude that there was no error, as the District Court properly
counted each married couple jointly holding investments as two
individual “victims” within the meaning of that term as used in
Section 2B1.1(b)(2) of the United States Sentencing Guidelines, and
the sentence was not substantively unreasonable under the
circumstances. We therefore AFFIRM; but the cause is REMANDED
to the District Court for the sole purpose of making ministerial
corrections to the first page of the amended judgment by deleting
the reference to 18 U.S.C. § 1341 and changing “78(j)(b); (ff)” to
“78j(b); 78ff.”
Ransom Reynolds, Steven D. Clymer,
Assistant United States Attorneys, for
Richard S. Hartunian, United States
Attorney for the Northern District of New
York, Syracuse, NY, for Appellee.
David J. Taffany, Anderson, Moschetti &
Taffany, PLLC, Latham, NY, for Defendant‐
Appellant.
2
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐appellant Matthew John Ryan (“Ryan”) has
appealed from an October 12, 2011 judgment of the District Court
sentencing him principally to a term of imprisonment of 121 months
following his February 22, 2011 guilty plea to one count of securities
fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b‐
5, and 18 U.S.C. § 2. The District Court incorporated that
punishment into an amended judgment, dated March 3, 2015, and
entered May 1, 2015 (the “May 1, 2015 amended judgment”), from
which Ryan has not filed a second notice of appeal. Because we held
his original appeal in abeyance pending completion of the
restitution proceedings that resulted in the amended judgment,1 and
because the amended judgment supersedes the original judgment,
we treat Ryan’s appeal as a challenge to so much of the amended
judgment as sentenced him to 121 months’ imprisonment.2
1 The original judgment was a final judgment, despite the fact that the
District Court did not enter a restitution order until it entered the amended
judgment on May 1, 2015. See Gonzalez v. United States, 792 F.3d 232, 237 (2d Cir.
2015) (holding that a defendant has “two opportunities to appeal: from an initial
sentence, even if some aspects of the sentence are not final; and from the final
order disposing of the case in the district court”). Accordingly, this Court has
had jurisdiction since October 2011, when Ryan timely filed a notice of appeal of
the original judgment.
2 The amended judgment (like the original judgment) contains two errors
that the District Court should correct. First, although the amended judgment
correctly identifies the offense to which Ryan pleaded guilty as “Securities
Fraud,” it incorrectly identifies 18 U.S.C. § 1341 as one of the operative statutes.
See Amended Judgment at 1, United States v. Ryan, No. 10‐CR‐319 (NAM)
3
Ryan raises two arguments on appeal. First, he argues that the
District Court erred in determining that his offense involved 50 or
more victims. Second, he argues that his sentence was substantively
unreasonable. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues
on appeal.
We begin with Ryan’s first argument. “[A] trial judge in the
federal judicial system generally has wide discretion in determining
what sentence to impose.” United States v. Tucker, 404 U.S. 443, 446
(1972); see also United States v. Corsey, 723 F.3d 366, 374 (2d Cir. 2013)
(noting that district courts enjoy “broad discretion” in sentencing
“because they are [ ] better positioned institutionally to determine
the appropriate sentence in a particular case”). “[B]efore making that
determination, a judge may appropriately conduct an inquiry broad
in scope, largely unlimited either as to the kind of information he
may consider, or the source from which it may come.” Tucker, 404
U.S. at 446; accord Alleyne v. United States, 133 S. Ct. 2151, 2163 n.6
(2013) (same); U.S. Sentencing Guidelines Manual § 6A1.3(a) (U.S.
Sentencing Comm’n 2010) (“2010 Guidelines”) (“In resolving any
dispute concerning a factor important to the sentencing
(N.D.N.Y. May 1, 2015), ECF No. 72 (“Amended Judgment”). Ryan was charged
in the indictment with several counts of mail fraud under Section 1341, see A‐18–
19, but those counts were dismissed pursuant to his plea agreement, see A‐32, A‐
114. Second, the amended judgment refers to “15 U.S.C. §§ 78(j)(b); (ff),” which
should instead read “15 U.S.C. §§ 78j(b); 78ff.” See Amended Judgment at 1.
4
determination, the court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at
trial, provided that the information has sufficient indicia of
reliability to support its probable accuracy.”). Additionally, at
sentencing, “the district court may make credibility determinations
which this Court will not disturb unless clearly erroneous.” United
States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002) (internal quotation
marks omitted); see also United States v. Guang, 511 F.3d 110, 123 (2d
Cir. 2007) (“We give strong deference to findings based on
credibility determinations.”).
At the time of Ryan’s sentencing, Section 2B1.1(b)(2)(B) of the
United States Sentencing Guidelines (the “Guidelines”) provided
that, “[i]f the [defendant’s] offense . . . involved 50 or more victims,
[the offense level should be] increase[d] by 4 levels.” 2010
Guidelines § 2B1.1(b)(2)(B); see also United States v. Lacey, 699 F.3d
710, 714 (2d Cir. 2012); United States v. Gonzalez, 647 F.3d 41, 61 (2d
Cir. 2011).3 The Guidelines define “victim” in pertinent part as “any
person who sustained any part of the actual loss,” and “person” as
“includ[ing] individuals, corporations, companies, associations,
3 Effective November 1, 2015, Section 2B1.1(b)(2)(B) was amended to set
new thresholds for offense‐level increases according to the number of and extent
of harm caused to victims. But this amendment does not affect our analysis here,
because “[g]enerally, sentencing courts are required to apply the Guidelines
Manual in effect on the date that the defendant is sentenced.” United States v.
Brooks, 732 F.3d 148, 149 (2d Cir. 2013) (citing 18 U.S.C. § 3553(a)(4)(A)(ii)); 2010
Guidelines § 1B1.11(a)).
5
firms, partnerships, societies, and joint stock companies.” 2010
Guidelines § 2B1.1 cmt. n.1.
“The question of whether a given individual is a victim within
the meaning of [Section] 2B1.1(b)(2) . . . is an issue of law,” which we
review de novo, and “[t]he number of persons or entities who are
victims within the meaning of . . . [Section] 2B1.1(b)(2) is a question
of fact. A district court’s factual findings at sentencing need be
supported only by a preponderance of the evidence, and such
findings may be overturned only if they are clearly erroneous.”
Gonzalez, 647 F.3d at 62 (alterations, citations, and internal quotation
marks omitted).
Upon review of the record and relevant law, we are convinced
that the District Court did not err, much less clearly err, in
determining that Ryan’s offense involved 50 or more victims. In
making this determination, the District Court relied on a “restitution
list” prepared by the United States Attorney’s Office for the
Northern District of New York. A‐95. The restitution list was based
on a report from the Securities and Exchange Commission,
responses to questionnaires that the Federal Bureau of Investigation
(“FBI”) sent to investors potentially harmed by Ryan’s fraud, and
interviews of those investors conducted by an FBI agent. A‐88–90. It
therefore “ha[d] sufficient indicia of reliability to support its
probable accuracy.” 2010 Guidelines § 6A1.3(a).
The restitution list included the names of more than 50
victims. See GA‐4–7. Some of these victims were the spouses of other
6
victims, which prompted a colloquy between the District Court and
the government. See A‐90–91 (“[T]here are many instances you had
spouses that had invested. In those cases you would have two
victims, not just one victim. And so based on that . . ., we calculated
that it would be more than 50 victims.”). But this fact does not alter
our conclusion, as we agree with the Seventh Circuit that “it [is]
proper for [a] district court to count a married couple holding
investments jointly as two individual victims for the purposes of
applying the section 2B1.1(b)(2) sentence enhancement.” United
States v. Harris, 718 F.3d 698, 703 (7th Cir. 2013); see also United States
v. Densmore, 210 F. App’x 965, 971 (11th Cir. 2006) (non‐precedential
but persuasive unpublished opinion) 4 (“[B]oth [a] husband and [a]
wife are victims under § 2B1.1(b)(2) when jointly held money is
taken . . . .”). As the commentary to Section 2B1.1 makes clear, “any
person who sustained any part of the actual loss” is a “victim.” 2010
Guidelines § 2B1.1 cmt. n.1 (emphasis supplied). Thus, the District
Court properly counted each married couple jointly holding
4 See Fed. R. App. P. 32.1 advisory committee’s note to 2006 adoption
(“The citation of unpublished opinions issued before January 1, 2007, will
continue to be governed by the local rules of the circuits.”). Compare 11th Cir. R.
36‐2 (“Unpublished opinions are not considered binding precedent, but they may
be cited as persuasive authority.”), with 2d Cir. R. 32.1.1(b) (“[A] party may not
cite a summary order of this court issued prior to January 1, 2007, except: (A) in a
subsequent stage of a case in which the summary order has been entered, in a
related case, or in any case for purposes of estoppel or res judicata; or (B) when a
party cites the summary order as subsequent history for another opinion that it
appropriately cites.”).
7
investments as two individual “victims” within the meaning of that
term as used in Section 2B1.1(b)(2).
Further, we find no error in the District Court’s rejection of
Ryan’s claim that “there were only 31 or 32 victims” on the ground
that “the list he submitted with his sentencing memorandum [was]
based on his personal recollection and [was] unsubstantiated.” A‐95.
It is clear that the District Court declined to credit Ryan’s assertion, a
decision that is entitled to substantial deference. See, e.g., United
States v. Norman, 776 F.3d 67, 78 (2d Cir. 2015). Accordingly, we
affirm the District Court’s determination that Ryan’s offense
involved 50 or more victims.
With respect to Ryan’s second argument—that his sentence
was substantively unreasonable—“[w]e will set aside a district
court’s substantive determination only in exceptional cases where
the trial court’s decision cannot be located within the range of
permissible decisions.” United States v. Wagner‐Dano, 679 F.3d 83, 95
(2d Cir. 2012) (alterations and internal quotation marks omitted).
Further, “[w]hile we have declined to adopt a per se rule, we
recognize that in the overwhelming majority of cases, a Guidelines
sentence will fall comfortably within the broad range of sentences
that would be reasonable in the particular circumstances.” United
States v. Ingram, 721 F.3d 35, 37 (2d Cir. 2013) (alteration and internal
quotation marks omitted).
Here, Ryan’s sentence fell within the Guidelines range, A‐111–
12, and we see nothing in the record to suggest that this is “one of
8
those exceptional cases in which the imposition of a within‐
Guidelines sentence is substantively unreasonable,” United States v.
Chu, 714 F.3d 742, 748 (2d Cir. 2013) (internal quotation marks
omitted). We therefore also affirm the District Court’s substantive
determination.
CONCLUSION
We have considered all of Ryan’s arguments on appeal and
have found them to be without merit. The May 1, 2015 amended
judgment of the District Court is therefore AFFIRMED; but the
cause is REMANDED to the District Court for the sole purpose of
making ministerial corrections to the first page of the amended
judgment by deleting the reference to 18 U.S.C. § 1341 and changing
“78(j)(b); (ff)” to “78j(b); 78ff.”
9