United States v. Spano, Michael

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1110, 03-1113 & 03-1195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL SPANO, SR., EMIL SCHULLO,
and JAMES INENDINO,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 30—Ruben Castillo, Judge.
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SUBMITTED FEBRUARY 3, 2006—DECIDED MAY 9, 2006
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Before CUDAHY, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. After a trial, the defendants
were convicted on various charges relating to a scheme
to defraud the Town of Cicero, Illinois, and sentenced to
prison. On appeal we affirmed the convictions but ordered a
limited remand to ask the judge whether he would have
imposed the same sentences had he known that the Guide-
lines were advisory. United States v. Paladino, 401 F.3d
471, 483-84 (7th Cir. 2005). Judge Castillo answered that
he would. We now affirm because we are unpersuaded by
the defendants’ arguments that the judge failed to exercise
his discretion and because we conclude that the sentences
are reasonable.
2 Nos. 03-1110, 03-1113 & 03-1195
The defendants rely heavily on certain comments of the
district court judge, expressed in his response to our
Paladino remand, to argue that the judge in fact failed
to exercise the discretion afforded by United States v.
Booker, 543 U.S. 220 (2005). These comments include the
judge’s opinion that our precedent concerning sentencing
post-Booker is “somewhat contradictory,” and his opinion
that we erred by sending him this Paladino remand.
A refusal or failure to exercise the discretion afforded
by Booker (or our inability to determine whether discre-
tion was actually exercised) would require a further
remand. See United States v. Cunningham, 429 F.3d 673,
679 (7th Cir. 2005). But a fair reading of Judge Castillo’s
response does not support that conclusion. The judge
made it clear that he was reviewing the defendants’ sen-
tences again “in light of all of the § 3553(a) factors,” and he
explained for each individual defendant why he believed the
Guidelines sentence was appropriate.
Nor is the judge’s explanation insufficient. It is true
that the judge focused more on the original sentencing
hearing than any new (by which we mean post-remand)
analysis of the § 3553(a) factors, but this is entirely under-
standable given the paucity of the defendants’ arguments
below. Neither Spano nor Schullo presented any analysis of
the § 3553(a) factors and Inendino’s exhortation to look at
his “real conduct” was considered, albeit briefly, and
rejected. On a Paladino remand a judge need not employ a
full-fledged methodology for measuring the reasonableness
of the Guidelines sentence against § 3553(a). See United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005). And the
need for a judge to explain in detail his consideration of the
§ 3553(a) factors when choosing to stick with the Guidelines
sentence is proportional to the arguments made by the
defendants. See Cunningham, 429 F.3d at 678. When the
judge is not presented with much, he need not explain
Nos. 03-1110, 03-1113 & 03-1195 3
much. See id. In this case, the judge’s explanation was
sufficient.
We still must consider for ourselves whether the sen-
tences are reasonable. “[A]ny sentence that is properly
calculated under the Guidelines is entitled to a rebuttable
presumption of reasonableness.” United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). There is no challenge as
to the proper calculations of the Guidelines sentences.
Therefore, the defendants must rebut the presumption of
reasonableness attached to the Guidelines sentences “ ‘by
demonstrating that [their] . . . sentence[s] [are] unreason-
able when measured against the factors set forth in §
3553(a).’ ” United States v. Brock, 433 F.3d 931, 938 (7th
Cir. 2006) (quoting Mykytiuk, 415 F.3d at 608).
None of the defendants have made this showing. Neither
Schullo nor Spano provide any reasons why their sen-
tences are unreasonable when measured against the
§ 3553(a) factors, and we see none. Inendino, without any
specific reference to § 3553(a), argues that his sentence
of 78 months’ imprisonment is unreasonable because he
only received about $3,100 in profit from the illegal scheme,
and because he allegedly thought the fraudulent contract
which formed the basis of the criminal conduct was “legit.”
These arguments, however, ignore the jury’s conclusion that
he was part of a scheme to defraud the Town of Cicero, the
loss amount of over $75,000, and his Criminal History
Category IV. It is not unreasonable for the district court
judge to determine that Inendino’s conduct in this case and
criminal history were serious enough to warrant a sentence
within the Guidelines range. Finally, Schullo argues that
our Paladino procedure is unconstitutional, but he provides
no reason why we should reconsider it in this case–so we
will not. See Brock, 433 F.3d at 938.
The sentences are AFFIRMED.
4 Nos. 03-1110, 03-1113 & 03-1195
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-9-06