11-3714-cr
United States v. Mazza
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of November, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 REENA RAGGI,
9 JON O. NEWMAN,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 UNITED STATES OF AMERICA,
14 Appellee,
15
16 -v.- 11-3714-cr
17
18 CHEYNE MAZZA,
19 Defendant-Appellant,
20
21 JOSEPH CASSETTI, JAMES CANAVAN,
22 STERLING MAZZA, PHILIP NEGRON, and
23 GARY EICHENSEHR,
24 Defendants.
25 - - - - - - - - - - - - - - - - - - - -X
26
27 FOR APPELLANT: Michael S. Hillis, New Haven,
28 Connecticut.
1
1
2 FOR APPELLEES: David X. Sullivan, Sandra S.
3 Glover, for David B. Fein,
4 United States Attorneys Office
5 for the District of Connecticut,
6 New Haven, Connecticut.
7
8 Appeal from a judgment of the United States District
9 Court for the District of Connecticut (Bryant, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 AFFIRMED.
14
15 Cheyne Mazza challenges his sentence, arguing that the
16 district court erred in applying the United States Federal
17 Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) by [1]
18 refusing to grant a reduction for acceptance of
19 responsibility and [2] counting a prior Connecticut
20 conviction in determining criminal history category
21 notwithstanding that Connecticut afterward decriminalized
22 the conduct giving rise to that conviction. We assume the
23 parties’ familiarity with the underlying facts, the
24 procedural history, and the issues presented for review.
25
26 This Court reviews the procedural reasonableness of a
27 district court’s sentence for abuse of discretion. United
28 States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008). “A
29 district court commits procedural error where it fails to
30 calculate the Guidelines range . . . , makes a mistake in
31 its Guidelines calculation, or treats the Guidelines as
32 mandatory.” Id. at 190 (citations omitted).
33
34 1. In refusing a reduction for acceptance of
35 responsibility under U.S.S.G. § 3E1.1 (2009), the district
36 court did not abuse its discretion by considering the
37 untimeliness of the plea. See U.S.S.G. § 3E1.1 cmt. 1(h)
38 (“In determining whether a defendant qualifies under
39 subsection (a), appropriate considerations include . . . the
40 timeliness of the defendant’s conduct in manifesting the
41 acceptance of responsibility.”); id. cmt. 6 (“The timeliness
42 of the defendant’s acceptance of responsibility is a
43 consideration under both subsections.” (emphasis added)).
44 Defendant’s reliance on United States v. Kumar, 617 F.3d
45 612, 636 (2d Cir. 2010), is unpersuasive because in this
46 case, the timeliness of Defendant’s plea was not the only
47 factor upon which the district court based its decision to
2
1 deny the reduction. Moreover, Defendant pled guilty on the
2 morning of jury selection. See id. at 637 (emphasizing that
3 Kumar did not plead “‘on the morning of trial’” (quoting
4 United States v. Teyer, 322 F. Supp. 2d 359, 376 (S.D.N.Y.
5 2004)).
6
7 2. The district court did not base its denial of a
8 reduction on Defendant’s request for a Fatico hearing, as
9 Defendant argues. The district court refused the reduction
10 in part on Defendant’s request for a Fatico hearing because
11 the request was “totally and completely frivolous.”
12 (Sentencing Hr’g Tr. 50, Aug. 29, 2011.) Relatedly, a
13 defendant’s refusal to admit to his role as leader of the
14 conspiracy (the subject of the Fatico hearing) is in itself
15 a proper basis upon which the district court denied
16 Defendant a reduction for acceptance of responsibility. See
17 United States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001)
18 (denying reduction where defendant asserted that he “was
19 paid to do the job, [and] that he was merely a ‘middle
20 person’”).
21
22 3. Defendant was not denied a reduction for
23 acceptance of responsibility for refusing to admit to
24 uncharged conduct. He was denied the reduction for refusing
25 to admit to his role in the conspiracy, which, as Zhuang
26 holds, was proper. In any event, Defendant’s reliance on
27 United States v. Oliveras, 905 F.2d 623, 629-30 (2d Cir.
28 1990), is unavailing, as the court in Oliveras relied on
29 language in section 3E1.1 that has since been changed.
30
31 4. The district court properly calculated Defendant’s
32 criminal history category. One of Defendant’s prior
33 convictions was for possession of a small amount of
34 marijuana, conduct that the Connecticut legislature
35 subsequently decriminalized. See Conn. Gen. Stat. §
36 21a-279a (2011); id. § 53a-24(a) (“Every offense which is
37 not a ‘crime’ is a ‘violation’. Conviction of a violation
38 shall not give rise to any disability or legal disadvantage
39 based on conviction of a criminal offense.”); id. §
40 53a-27(b) & (c). However, a state’s classification of
41 conduct as a “violation” or a “crime” is irrelevant for the
42 purpose of calculating a defendant’s prior criminal history
43 under U.S.S.G. § 4A1.1(c). As the Application Notes to
44 section 4A1.1 explain: “To minimize problems with imperfect
45 measures of past crime seriousness, criminal history
46 categories are based on the maximum term imposed in previous
47 sentences rather than on other measures, such as whether the
3
1 conviction was designated a felony or misdemeanor.”
2 U.S.S.G. § 4A1.1(c) cmt. background. Exceptions for certain
3 minor infractions (such as traffic violations and loitering)
4 are listed in section 4A1.2(c), but drug possession is not
5 among them. See United States v. Jenkins, 989 F.2d 979, 979
6 (8th Cir. 1993) (holding that the district court correctly
7 applied criminal history points to defendant’s prior state
8 marijuana convictions that were “merely infractions under
9 Nebraska law”). Moreover, a state’s reclassification that
10 occurs after a conviction has become final does not apply
11 retroactively. The Guidelines’ concern with “[r]epeated
12 criminal behavior [as] an indicator of a limited likelihood
13 of successful rehabilitation” suggests that the only
14 relevant consideration is whether the defendant has engaged
15 in criminal behavior in the past. U.S.S.G. Ch. 4, pt. A,
16 intro. cmt. Defendant’s behavior was criminal at the time
17 he engaged in it, and as such, is an “indicator of a limited
18 likelihood of successful rehabilitation.” Id.; see
19 generally McNeill v. United States, 131 S. Ct. 2218 (2011)
20 (holding that state’s subsequent lowering of punishment for
21 crime of prior conviction did not render conviction
22 inapplicable to Federal Armed Career Criminal Act).
23
24 Finding no merit in Mazza’s remaining arguments, we
25 hereby AFFIRM the judgment of the district court.
26
27
28 FOR THE COURT:
29 CATHERINE O’HAGAN WOLFE, CLERK
30
4