United States v. Cifonelli , 446 F. App'x 363 ( 2011 )

09-0020-cr
United States v. Cifonelli
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17th day of November, two thousand eleven.
PRESENT:
AMALYA L. KEARSE,
PIERRE N. LEVAL,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 09-0020-cr
DANIEL CIFONELLI,
Defendant-Appellant.
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FOR DEFENDANT-APPELLANT: ALAN M. NELSON, Lake Success, New
York.
FOR APPELLEE: BURTON T. RYAN, JR., Assistant
United States Attorney (Jo Ann M.
Navickas, Assistant United States
Attorney, on the brief), for
Loretta E. Lynch, United States
Attorney for the Eastern District
of New York, Brooklyn, New York.
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Spatt, J.) entered
December 22, 2008, convicting Daniel Cifonelli of one count of
attempt to evade income tax and sentencing him to thirty months'
imprisonment, three years' supervised release, and restitution in
the amount of $59,272.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
We assume the parties' familiarity with the facts and
procedural history of the case, which we summarize as follows:
On April 17, 2006, Cifonelli pled guilty to a single
count of attempted tax evasion in violation of 26 U.S.C. § 7201.
Following a Fatico hearing on September 6, 2006, the district
court determined that Cifonelli's Guideline range was 18 to 24
months. The court then sentenced Cifonelli to an above-Guideline
sentence of 30 months' imprisonment with 3 years' supervised
release and restitution in the amount of $59,272.
On April 6, 2007, Cifonelli moved for relief under
28 U.S.C. § 2255, alleging ineffective assistance of counsel
because his former attorney failed to file a notice of appeal,
object to the above-Guideline sentence, and contest the amount of
restitution. By order dated November 24, 2008, the district
court granted the motion with respect to the failure to file a
notice of appeal, but rejected Cifonelli's arguments regarding
the sentence and amount of restitution. It accordingly vacated
its original judgment and entered an amended judgment on November
24, 2008, with identical terms to allow for Cifonelli to file an
appeal. The court then entered an identical second amended
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judgment on December 22, 2008 to allow Cifonelli additional time
to file an appeal. Cifonelli appeals from this second amended
judgment.
Cifonelli filed a notice of appeal on January 5, 2009.
He then filed a motion in the district court on July 16, 2009 to
vacate the restitution order and to modify his prison term. This
Court issued a mandate on January 4, 2010, dismissing Cifonelli's
appeal for lack of prosecution.1 On January 5, 2010, the
district court held a hearing regarding Cifonelli's motion to
amend or correct its sentence and restitution order. The court
noted that Cifonelli's appeal had been dismissed, restoring
jurisdiction to the district court, but concluded that it did not
have the authority to modify Cifonelli's sentence or restitution
order under 18 U.S.C. § 3582(c) or Fed. R. Crim. P. 35(a) and 36
because the window for correcting "clear error" had passed and
the requested changes were not "clerical." The court also stated
that even if it did retain such authority, it would decline to
modify the judgment. On March 16, 2011, this Court granted
Cifonelli's motion to recall its mandate and reinstate the
appeal.
On appeal, Cifonelli argues that the district court
erred by: (1) ordering restitution in an amount greater than that
agreed upon in his plea agreement; (2) imposing a procedurally
unreasonable sentence that failed to determine the correct amount
1
Cifonelli's second attorney had been suspended from
practicing in this Court, and as a result, never filed any
opening brief.
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of restitution or memorialize in writing the reasons for imposing
a sentence above the Guideline range; and (3) imposing a
substantively unreasonable above-Guideline sentence of 30 months'
imprisonment. We address each argument in turn.
1. Improper Restitution Amount
Cifonelli claims that the amount of restitution was
improper because it exceeded the amount agreed upon in his plea
agreement by not accounting for money already paid to the
Internal Revenue Service ("IRS") in an amended tax return filed
for 2002.
For violations of 26 U.S.C. § 7201, the district court
had no authority to impose restitution except pursuant to
18 U.S.C. § 3663(a)(3), which allows restitution to be ordered
"to the extent agreed to by the parties in a plea agreement." In
pertinent part, Cifonelli's plea agreement provided:
Restitution: An amount to be set by the Court,
which is not greater than the dollar amount of
the total losses suffered by the victims of
the offense. The parties agree that
restitution with respect to the defendant's
back taxes, penalties and interest may also be
ordered by the Court.
(Plea Agreement at 2).
Thus, the plea agreement provided for restitution in an
amount not greater than "the total losses suffered by the victims
of the offense," and here, the losses were the "back taxes,
penalties and interest" Cifonelli owed for the 2002 tax year.
The plea agreement did not, however, specify the amount. At
Cifonelli's first sentencing proceeding in 2006, the district
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court imposed restitution in the amount of $59,272, relying upon
the probation officer's report of the amount of Cifonelli's 2002
tax liability, as told to the probation officer by IRS agents.
Although Cifonelli objected in a September 19, 2007 pro se
submission supporting his § 2255 application that he "had filed
amended tax returns and remitted any and all taxes due for the
year 2002," Letter of Pet'r at 3, Cifonelli v. United States,
No. 07 Civ. 1816 (E.D.N.Y. Sept. 19, 2007), he has not, either in
the district court or in this Court, ever pointed to any evidence
supporting his contention.
Given his failure to provide any support for his
objection to the figure provided to the court by the IRS, we see
no error in the district court's reliance on that figure to
determine the amount of his tax liability, which is the amount of
restitution to which he consented in the plea agreement.
Cifonelli is wrong to suggest that the district court had no
authority to impose restitution in a specified amount to which he
did not agree. The plea agreement did not require that he
consent to a specific amount, only that the amount ordered not
exceed his 2002 tax liability. The district court imposed
restitution in the amount of Cifonelli's 2002 tax liability in
reasonable reliance on a figure provided by the IRS, and
Cifonelli submitted nothing except his naked objection to
contravene this figure. His argument has no validity.
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2. Procedural Unreasonableness
Cifonelli next contends that his sentence was
procedurally unreasonable because the district court incorrectly
calculated the amount of restitution, and further, it failed to
state with specificity in writing its reasons for imposing an
above-Guideline sentence pursuant to 18 U.S.C. § 3553(c)(2).
First, with respect to the calculation of restitution,
for the reasons set forth above, we conclude that the district
court did not commit any error.
Second, as to the issue of written memorialization of
the district court's reasons for imposing an above-Guideline
sentence, Cifonelli's claim fails. The district court complied
with the requirements of § 3553(c)(2) and set forth its reasons
for an above-Guideline sentence in a Statement of Reasons filed
in connection with the December 22, 2008 judgment. Although the
district court's written reasons were somewhat cursory, it had
provided a thorough explanation on the record of its rationale
for departing from the Guideline range. See United States v.
Hall, 499 F.3d 152, 155 (2d Cir. 2007) (holding that an
"exhaustive statement of facts" is not required and explaining
that "[w]e do not understand Congress's intent in enacting
section 3553(c)(2) to have been to divert district courts'
attention from conducting a thoughtful, on-the-record,
face-to-face sentencing exchange with criminal defendants to
obsessing over the inclusion of every material sentencing fact in
a written order of judgment"), abrogated on other grounds by
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United States v. Elbert, 658 F.3d 220 (2d Cir. 2011). Thus,
there was no procedural error.
3. Substantive Unreasonableness
Cifonelli also contends that his sentence was
substantively unreasonable because it was six months above the
high end of the applicable Guideline range of 18 to 24 months.
Further, he asserts that the district court failed to consider
his age, poor health, remorse, and efforts to correctly amend his
taxes, and instead, focused on his state criminal charges and its
belief that he would receive no additional incarceration as a
result of his state charges.
In examining a sentence for substantive reasonableness,
we review it under a "'deferential abuse-of-discretion
standard.'" United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
Here, we conclude that the district court did not abuse
its discretion in imposing an above-Guideline sentence of 30
months. In light of all the factors articulated by the district
court, including, in particular, Cifonelli's position as a
prominent school district official and the nature and
extensiveness of the relevant criminal conduct in that it
involved theft from the school district and tax evasion, and that
it persisted for four years, the sentence imposed was reasonable
and appropriate.
Moreover, Cifonelli's assertion that the district court
failed to account for his poor health and old age is misplaced,
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as the court weighed Cifonelli's health among the factors it
discussed, and ultimately, recommended that Cifonelli serve his
sentence in a correctional facility that defense counsel
requested because of its good medical care.
Finally, we reject Cifonelli's argument that the
district court failed to consider the fact that because he was
released on bail pending his federal appeal while still serving
his concurrent state prison sentence, upon returning to federal
prison, he will have served more than 30 months' total
incarceration for his federal and state crimes. First, Cifonelli
did not raise this argument until his motion to amend or correct
his sentence, well after the district court issued the judgment
from which he now appeals, i.e., at a point at which the district
court did not have jurisdiction to modify the term of
imprisonment. Second, as the district court explained at the
time, it did not intend for its sentence to run concurrently with
the later-imposed state sentence. At the original sentencing,
the district court only took note of the fact that the state
court had apparently promised to impose a sentence that would run
concurrently with the federal sentence and that "[Cifonelli]
[was] not likely to experience any punitive measures" at the
state level. (Sentencing Tr. 73, Sept. 6, 2006).
Therefore, the district court's determination to impose
an above-Guideline sentence of 30 months was not "exceptional"
and fell "within the range of permissible decisions." Cavera,
550 F.3d at 189 (internal citation and quotation marks omitted).
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CONCLUSION
We have considered appellant's other arguments on
appeal and have found them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED in its
entirety.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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