United States v. Robert Petrozzino , 667 F. App'x 634 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 01 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10314
Plaintiff - Appellee, D.C. No. 2:14-cr-00312-GMN-
NJK-1
v.
ROBERT PETROZZINO, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted June 14, 2016
San Francisco, California
Before: CLIFTON, and IKUTA, Circuit Judges, and LAMBERTH,** Senior
District Judge.
Robert Petrozzino appeals various aspects of the district court’s imposition
of a 75-month prison sentence for the crimes of possession of stolen mail, theft of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
government money, and aggravated identity theft. We have jurisdiction pursuant to
28 U.S.C. § 1291 and we affirm.
First, the district court did not fail to resolve factual disputes in Petrozzino’s
presentencing report, as Petrozzino now contends. The district court had no
obligation under Federal Rule of Criminal Procedure 32(i)(3)(B) to resolve factual
disputes related to paragraphs 11 through 14 of the presentencing report because
Petrozzino failed “to make specific allegations of factual inaccuracy” in regard to
those paragraphs. United States v. Christensen, 732 F.3d 1094, 1101–02 (9th Cir.
2013). Although Petrozzino had argued during the sentencing proceedings that
various portions of his presentencing report were incorrect or unsubstantiated, the
district court specifically rejected those arguments at Petrozzino’s sentencing
hearing. In doing so, the district court made findings sufficient to permit
meaningful review by this Court.
Second, under the facts of this case, it was reasonable for the district court
to calculate Petrozzino’s intended loss by adding together the face value of the
checks contained in the mail he had stolen, including the checks that were in
unopened envelopes. The district court applied this loss calculation methodology
only after determining that Petrozzino was aware the mail contained stolen checks
and that he had intended to exchange the entirety of the mail for
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methamphetamine, as he had repeatedly done before. As a result and contrary to
defendant’s argument, the district court’s decision to value the stolen mail by
totaling the amount of uncashed checks it contained was not “mechanical[].”
United States v. Santos, 527 F.3d 1003, 1008 (9th Cir. 2008). Rather, the
calculation was consistent with Petrozzino’s admission that he had previously
exchanged stolen mail for methamphetamine and reflective of the losses
Petrozzino truly intended to cause. Therefore, because it was rooted in the
evidence of the case, the district court’s calculation methodology was reasonable
“based on available information.” U.S.S.G. § 2B1.1 cmt. n.3(C).
Third, the district court’s finding that Petrozzino played a supervisory role
was not clearly erroneous. Because the district court’s finding that Petrozzino
ordered his co-defendant to distract apartment staff to enable him to burglarize the
mailroom was not clearly erroneous, the district court did not err in concluding
that he “exercised some control over others involved in the commission of the
offense.” United States v. Doe, 778 F.3d 814, 823 (9th Cir. 2015) (quoting United
States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012)). Accordingly, the district
court’s application of the supervisory role sentencing enhancement must be
affirmed.
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Fourth, Petrozzino’s sentence was not substantively unreasonable. The
district court sentenced Petrozzino to the high end of his Sentencing Guidelines
range after finding his crime was serious and harmful, there were 450 victims, and
that as of the time of his arrest, Petrozzino had taken no steps to address his drug
addiction. As such, this is not one of the “rare cases” where a district court
imposed a substantively unreasonable sentence. United States v. Ressam, 679 F.3d
1069, 1088 (9th Cir. 2012) (en banc).
AFFIRMED.
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