United States v. Serino , 309 F. App'x 637 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-6-2009
USA v. Serino
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4228
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4228
UNITED STATES OF AMERICA,
v.
ALBERT SERINO,
a/k/a “Butchie” Serino,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 06-cv-00417-02)
District Judge: Honorable James M. Munley
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 31, 2008
Before: Sloviter, Stapleton, Tashima,* Circuit Judges
Filed: February 6, 2009
OPINION
*
The Honorable A. Wallace Tashima, Senior United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
TASHIMA, Circuit Judge.
On May 14, 2007, Albert Serino (“Serino”) pleaded guilty to possession of goods
stolen from interstate commerce, 18 U.S.C. §§ 659 and 2. He was sentenced to 18
months’ imprisonment and three years’ supervised release, and he now appeals. We have
jurisdiction under 18 U.S.C. § 3742(a).
I.
In January 2006, government agents received information that Serino was
attempting to sell stolen traveler’s checks. A confidential informant then contacted
Serino in order to purchase the checks. According to the informant, Serino possessed
$385,000 in stolen traveler’s checks that he offered to sell for 20 percent of their face
value. The two agreed to a transaction and scheduled a meeting at which government
agents conducted surveillance. They observed Serino sell the informant $10,000 worth of
stolen checks for $2,500 in cash. Approximately two weeks later, the informant again
met with Serino and attempted to negotiate the purchase of the remaining checks. During
this meeting, Serino indicated that there were approximately $380,000 worth of traveler’s
checks available for sale. Authorities ultimately recovered $378,500 worth of stolen
traveler’s checks from other individuals involved in the crime.
Serino’s advisory Guidelines sentencing range was calculated at 18-24 months,
based on a criminal history category of I and an offense level of 15. He was sentenced to
an 18-month term of imprisonment – the bottom end of the Guidelines range.
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II.
Serino challenges his sentence on three grounds. First, he challenges the district
court’s calculation of “loss” under U.S.S.G § 2B1.1. Second, he argues that the district
court failed properly to consider the mitigating facts and arguments, as required by 18
U.S.C. § 3553(a). Finally, Serino contends that the district court did not adequately state
its reasons for the sentence, as required by 18 U.S.C. § 3553(c).
A.
We review the factual determinations underlying a district court’s loss calculation
for clear error. United States v. Himler, 355 F.3d 735, 740 (3d Cir. 2004).
Under the Sentencing Guidelines, “loss” is a specific offense characteristic and is
defined as “the greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. 3(A). The
comments define “intended loss,” the relevant form of loss in this case, as “the pecuniary
harm that was intended to result from the offense . . . .” Id. at cmt. 3(A)(ii). Further,
under the Guidelines, the defendant is responsible for:
(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert with
others, whether or not charged as a conspiracy), all reasonably foreseeable
acts and omissions of others in furtherance of the jointly undertaken
criminal activity, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense . . . .
U.S.S.G. § 1B1.3(a)(1) (emphasis added).
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Serino argues that the district court improperly linked him to the $378,500 of
traveler’s checks recovered from others, contending that the loss chargeable to him
should be limited to the value of the checks he transferred to the informant. According to
Serino, the recorded conversation between him and the informant does not support the
conclusion that he possessed the checks. He argues that the conversation proves only that
“he knew of these remaining checks and [in] whose possession they remained.” This
evidence, however, is sufficient to link Serino to the remaining traveler’s checks on the
basis of a jointly undertaken criminal activity. In other words, the evidence supports an
inference that Serino was a member of a jointly undertaken criminal activity, and thus
was responsible for the remaining traveler’s checks under § 1B1.3(a)(1)(B). The district
court’s loss calculation findings, therefore, were not clearly erroneous.
Serino also argues that the face value of the outstanding traveler’s checks should
not have been charged to him as loss, citing United States v. Geevers, 226 F.3d 186, 194
(3d Cir. 2000), in support. Geevers holds, however, that a district court may consider the
face value of a check as part of a reasonable estimate of the intended loss. Id. Here,
unlike in Geevers, there is little doubt that Serino intended and realized that the traveler’s
checks would be redeemed for their full face value. The district court thus did not clearly
err in basing its intended loss determination on the face value of the traveler’s checks.
B.
We review sentencing decisions for abuse of discretion. Gall v. United States, 128
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S. Ct. 586, 597 (2007). “An abuse of discretion is a clear error of judgment, and not
simply a different result which can arguably be obtained when applying the law to the
facts of the case.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 240 (3d Cir.
2007) (quoting SEC v. Infinity Group Co., 212 F.3d 180, 195 (3d Cir. 2000)).
Serino argues that the district court erred because it did not adequately consider
mitigating factors such as health, general good character, and family responsibilities. “To
determine if the court acted reasonably in imposing the resulting sentence, we must first
be satisfied the court exercised its discretion by considering the relevant factors.” United
States v. Sevilla, 541 F.3d 226, 231-32 (3d Cir. 2008) (quoting United States v. Cooper,
437 F.3d 324, 329 (3d Cir. 2006)). The record indicates, however, that the district court
adequately considered Serino’s mitigating arguments. The district judge heard all the
arguments presented by Serino and clearly indicated during the sentencing hearing that he
took them into consideration. Because we conclude that the district court adequately
considered the factors under 18 U.S.C. § 3553(a), we further conclude that Serino’s
sentence – at the bottom of the Guidelines range – was reasonable and not an abuse of
discretion. See also Rita v. United States, 127 S. Ct. 2456, 2465 (2007) (noting that a
sentence within the advisory Guidelines range will probably be reasonable).
C.
The final argument raised by Serino is that his sentence is unreasonable because
the district court failed adequately to state its reasons for imposition of the sentence
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pursuant to 18 U.S.C. § 3553(c). In Rita, the Supreme Court explained that a district
court need not always explain in detail its reasoning in imposing a sentence:
[W]e cannot read the statute (or our precedent) as insisting upon a full
opinion in every case. The appropriateness of brevity or length, conciseness
or detail, when to write, what to say, depends upon circumstances.
Sometimes a judicial opinion responds to every argument; sometimes it
does not; sometimes a judge simply writes the word “granted,” or “denied”
on the face of a motion while relying upon context and the parties’ prior
arguments to make the reasons clear. The law leaves much, in this respect,
to the judge’s own professional judgment.
127 S. Ct. at 2468. What the Court stated in Rita applies equally to this case: “In our
view, given the straightforward, conceptually simple arguments before the judge, the
judge’s statement of reasons here, though brief, was legally sufficient.” Id.
For the foregoing reasons, the judgment and sentence will be affirmed.
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