United States v. Luca Pizzingrilli

Case: 16-10984 Date Filed: 01/11/2017 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10984
Non-Argument Calendar
________________________
D.C. Docket No. 0:15-cr-60142-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUCA PIZZINGRILLI,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 11, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 16-10984 Date Filed: 01/11/2017 Page: 2 of 7
Luca Pizzingrilli appeals his 70-month sentence after pleading guilty to
conspiracy to commit access device fraud in violation of 18 U.S.C. § 1029(b)(2)
(Count 2) and to aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1)
(Count 3). Mr. Pizzingrilli argues that the district court imposed a substantively
unreasonable sentence as to Count 2 because it ignored his argument that the loss
for which he was held responsible overstated the amount of loss directly
attributable to him. Upon review of the record and consideration of the parties’
briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying record and recite only what is necessary to resolve this appeal.
Mr. Pizzingrilli engaged in a scheme to commit a practice commonly known
as “ATM skimming” with five other individuals. The scheme involved placing a
device over or inside an ATM card slot to read and store the card numbers of ATM
customers. The conspirators also mounted a concealed camera on the ATM to
obtain the personal identification number corresponding to the customer’s card.
Using this information, the conspirators electronically re-coded the card numbers
onto blank plastic cards or gift cards and used the cards to make withdrawals from
the customers’ bank accounts.
2
Case: 16-10984 Date Filed: 01/11/2017 Page: 3 of 7
The PSI held Mr. Pizzingrilli responsible for all of the bank accounts
involved in the scheme, totaling 1,275 skimmed accounts. The conspirators used
326 of those accounts, resulting in an actual loss of $233,802. The remaining 942
accounts that were skimmed, but not used, resulted in an intended loss calculation
of $474,500.1 Taking into account the actual and intended loss, the PSI assigned a
total loss of $708,302.
As to Count 2, the PSI recommended a total offense level of 23 and a
criminal history category of I, resulting in an advisory guideline range of 46 to 57
months’ imprisonment. This guideline range included a 14-level enhancement
under U.S.S.G. § 2B1.1(b)(1)(H) for a total loss amount of more than $550,000 but
not more than $1,500,000. Count 3 carried a mandatory consecutive 24-month
term of imprisonment. See 18 U.S.C. § 1028A.
Mr. Pizzingrilli requested a downward variance from the advisory guideline
range as to Count 2. The district court denied this request and sentenced
Mr. Pizzingrilli to 46 months’ imprisonment on Count 2, followed by the
mandatory 24-month consecutive term of imprisonment on Count 3.
II
We review the substantive reasonableness of a sentence for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 41 (2007). Mr. Pizzingrilli, as
1
The PSI assigned a $500 intended loss per unused account pursuant to U.S.S.G. § 2B1.1.
3
Case: 16-10984 Date Filed: 01/11/2017 Page: 4 of 7
the party challenging the sentence, has the burden of demonstrating that it is
unreasonable in light of the record and the factors enumerated in 18 U.S.C.
§ 3553(a). See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). “A
district court abuses its discretion when it (1) fails to afford consideration to
relevant factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th
Cir. 2010) (en banc). Under our deferential standard of review, “we are to vacate
the sentence if, but only if, we are left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a) factors
by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Id. at 1190 (internal quotation marks and citation
omitted).
We examine whether a sentence is substantively reasonable in light of the
totality of the circumstances. See Gall, 552 U.S. at 51. The district court must
impose a sentence “sufficient, but not greater than necessary, to comply with the
purposes” listed in § 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, and protect the public from the defendant’s future criminal
conduct. The court must also consider the need to avoid unwarranted sentencing
4
Case: 16-10984 Date Filed: 01/11/2017 Page: 5 of 7
disparities. See § 3553(a)(6). The fact that a sentence is within the advisory
guideline range and well below the statutory maximum are both factors indicative
of reasonableness. See United States v. Cubero, 754 F.3d 888, 898 (11th Cir.
2014).
III
The sentence on Count 2 falls at the low end of the advisory guideline range
and is well below the statutory 60-month maximum. See Cubero, 754 F.3d at 898.
Mr. Pizzingrilli has failed to demonstrate that this sentence was substantively
unreasonable in light of the record and the § 3553(a) factors. During sentencing,
the district court weighed the nature and circumstances of the crime, including the
sophisticated nature of the scheme to steal credit card information from ATMs.
The court considered Mr. Pizzingrilli’s background and history, including his
expression of remorse, his upbringing, and his mother’s testimony. The court
weighed the need to deter Mr. Pizzingrilli and others from such criminal activity
and to promote respect for the law.
As for Mr. Pizzingrilli’s claim that the district court failed to consider that
the actual loss was far less than the intended loss, we are not persuaded. The
district court need not state that it “considered the evidence and argument or why
[it] rejected the arguments for a variance”—it is “enough that the ‘context and
record’ indicated the reasoning behind [its] conclusion.” Irey, 612 F.3d at 1195
5
Case: 16-10984 Date Filed: 01/11/2017 Page: 6 of 7
(citing Rita v. United States, 551 U.S. 338, 359 (2007)). Indeed, we have never
required that a sentencing court “articulate [its] findings and reasoning with great
detail or in any detail for that matter.” Id. (citations omitted).
At sentencing, the district court engaged in extensive dialogue regarding
actual and intended loss. Mr. Pizzingrilli’s counsel argued that, because
Mr. Pizzingrilli was being held responsible for the conduct of his co-conspirators,
the total amount of loss overstated the loss directly attributable to him.
Specifically, he argued that, as stated in the factual proffer, the amount of loss
directly attributable to him was $145,620. Yet he was being held accountable for a
loss of $708,302, resulting in a six-level increase in his guidelines score. See D.E.
33 at 10–11. He conceded that, legally, he “ha[d] to be [held] responsible” and that
he knew “what was going on[,]” but maintained that the amount of loss was
exaggerated and asked the court to consider a lower guideline range more
reflective of his conduct. Id. at 13.
In response, the district court cited the multiple skimming events Mr.
Pizzingrilli participated in across several states and noted that he seemed
“thoroughly involved in the conspiracy.” Id. After announcing its sentence, the
district court specifically recognized that conspiracy “is a really dangerous crime”
because a conspirator like Mr. Pizzingrilli can be held liable not only for his own
conduct but also for the conduct of others. Id. at 33.
6
Case: 16-10984 Date Filed: 01/11/2017 Page: 7 of 7
The district court did not, as Mr. Pizzingrilli argues, ignore his argument.
Indeed, the record reflects that it considered all relevant factors as to the
conspiracy and the effects of the intended loss calculation.
IV
Mr. Pizzingrilli has not demonstrated that his 70-month sentence was
substantively unreasonable in light of the record and the § 3553(a) factors.
AFFIRMED.
7