United States v. Mazzara (Kerrigan) ( 2019 )

18‐1022‐cr (L)
United States of America v. Mazzara (Kerrigan)
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 12th day of September two thousand nineteen.
PRESENT: RICHARD C. WESLEY,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 18‐1022‐cr (L), 18‐1365‐cr (Con)
CHRISTOPHER KERRIGAN,
CHARLES KERRIGAN, AKA DUKE,
Defendants‐Appellants.*
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* The Clerk of the Court is directed to amend the caption to conform to the above.
FOR APPELLEE: Benet J. Kearney, Assistant United States
Attorney (David W. Denton, Jr., Won S. Shin,
Assistant United States Attorneys, on the brief),
for Geoffrey S. Berman, United States Attorney
for the Southern District of New York, New
York, New York.
FOR DEFENDANT‐APPELLANT Georgia J. Hinde, Law Office of Georgia J.
CHRISTOPHER KERRIGAN: Hinde, New York, New York.
FOR DEFENDANT‐APPELLANT Matthew Galluzzo, Galluzzo &
CHARLES KERRIGAN: Arnone LLP, New York, New York.
Appeal from the United States District Court for the Southern District of
New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.
Defendants‐appellants Christopher Kerrigan (ʺChristopherʺ) and Charles
Kerrigan (ʺCharlesʺ) appeal from judgments entered April 2, 2018 and April 30, 2018,
respectively, convicting them, following their guilty pleas, of bank burglary and related
crimes. In April 2016, Christopher and Charles burglarized the HSBC bank branch in
Brooklyn, New York. In May 2016, they burglarized the Maspeth Federal Savings Bank
branch in Queens, New York. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
Christopher pleaded guilty to conspiracy to commit bank burglary and
bank theft, bank burglary, and bank theft, in violation of 18 U.S.C. §§ 371 and 2113(a)
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and (b). Christopher was sentenced principally to ninety monthsʹ imprisonment
followed by three yearsʹ supervised release.
Charles pleaded guilty to conspiracy to commit bank burglary and bank
theft, bank burglary, bank theft, and retaliation against a witness while on pre‐trial
release in violation of 18 U.S.C. §§ 371, 2113(a) and (b), and 1513(b)(2). Charles was
sentenced principally to two‐hundred monthsʹ imprisonment followed by three yearsʹ
supervised release.
On appeal, Christopher raises two procedural challenges to his sentence:
the district courtʹs denial of downward adjustments for acceptance of responsibility and
for mitigating role. Charles raises both procedural and substantive challenges to his
sentence. Procedurally, Charles challenges the district courtʹs (1) denial of an
adjustment for acceptance of responsibility, (2) grouping analysis, and (3) granting of an
upward departure for physical injury under § 5K2.2.1 Substantively, Charles challenges
the reasonableness of his sentence as disparate compared to the sentences of his co‐
defendants.
1 Charles contests the district courtʹs denial of an adjustment for acceptance of responsibility and
its application of § 5K.2.2 as challenges to the substantive reasonableness of his sentence. Challenges to
Guidelines calculations, however, are evaluated for procedural error. See United States v. Norman, 776
F.3d 67, 76 (2d Cir. 2015).
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I. Christopher
A. Acceptance of Responsibility
The district court did not abuse its discretion in denying Christopher a
downward adjustment for acceptance of responsibility. United States v. Cavera, 550 F.3d
180, 189 (2d Cir. 2008) (reviewing procedural error in sentencing under deferential
abuse of discretion standard). The district court concluded Christopher had not made a
ʺclear demonstration of acceptance of responsibilityʺ as he persisted in maintaining that
he lacked knowledge of the location of the stolen items and ʺminimiz[ing]ʺ his role in
the burglary. Christopher Appʹx at 152‐55; see also U.S.S.G § 3E1.1 & cmt. n.1(E), 3
(providing that ʺvoluntary assistance to authorities in the recovery of the fruits and
instrumentalities of the offenseʺ may be considered in assessing acceptance of
responsibility). The conclusion was reasonable, as the record showed, for example, that
some of the stolen property was recovered from the residences of Christopherʹs family
members and associates and that Christopher received some of the stolen property
himself. Hence, Christopher likely knew where the property went and yet he refused to
assist in its recovery.
B. Mitigating Role
The district court properly denied Christopher a mitigating role
adjustment as it found that Christopher was not ʺsubstantially less culpable than the
average participantʺ in the burglary. U.S.S.G. § 3B1.2 cmt. n.3(A). While the district
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court determined that Christopher did not have decision‐making authority, exercised
little discretion, and was not a planner or organizer in a large organizational sense, it
found that he participated in staging the burglary and organizing the getaway vehicle,
he was on a walkie‐talkie and acted as a lookout and getaway driver, he benefitted from
the criminal activity, and he understood the scope and structure of the criminal activity.
See U.S.S.G. § 3B1.2 cmt. n.3(C) (noting that a mitigating role adjustment depends on the
totality of the circumstances and outlining factors to be considered by the district court);
United States v. Pitre, 960 F.2d 1112, 1126‐27 (2d Cir. 1992) (affirming the denial of role
reduction for a lookout who was aware of the extent of the illegal transaction). There
was support in the record for these findings, and therefore the district court did not
abuse its discretion in denying a mitigating role adjustment.
II. Charles
A. Acceptance of Responsibility
The district courtʹs denial of a downward adjustment for acceptance of
responsibility for Charles is well supported by the record. Not only did Charles fail to
assist with the recovery of stolen goods, but he physically retaliated against his
girlfriend and threatened to kill her son after she cooperated with the Government and
provided information regarding the burglaries. See U.S.S.G. § 3C1.1; United States v.
Savoca, 596 F.3d 154, 159 (2d Cir. 2010) (noting that obstruction of justice usually
indicates that defendant has not accepted responsibility). Therefore, his argument fails.
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B. Grouping
Charles did not object to the district courtʹs grouping analysis, and
therefore we review for plain error. United States v. Alvarado, 720 F.3d 153, 157 (2d Cir.
2013) (per curiam) (reviewing for plain error procedural challenge to a sentence not
raised before district court). The district court did not err when grouping the multiple
counts pursuant to § 3D1.2 prior to applying a three‐level enhancement pursuant to
§ 3C1.1. Because Charles was convicted on more than one count, the district court first
grouped together the counts related to the HSBC and Maspeth burglaries into two
separate groups, while also including the charge of witness retaliation in each of the
burglary groups, pursuant to § 3D1.2(a). See U.S.S.G. § 3C1.1 cmt. n.8 (providing that
ʺthe count for the obstruction offense will be grouped with the count for the underlying
offense under subsection (c) of § 3D1.2ʺ and the offense level will be increased by two).
Second, the district court applied to both groups enhancements for obstruction of justice
based on witness retaliation. See U.S.S.G §§ 3D1.2(c); 2J1.2 cmt. n.3. The district court
then applied a one‐level increase because the two groups were within eight levels of
each other. See U.S.S.G. § 3D1.4. We see no error in the district courtʹs grouping
analysis.
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C. Physical Injury
We likewise find no error in the district courtʹs application of § 5K2.2
when granting an upward departure for significant physical injury. U.S.S.G. § 5K2.2
(permitting upward departure for ʺsignificant physical injuryʺ). Charles contends that
the district court erred by relying on psychological rather than physical injuries. While
it is true that the district court mentioned the psychological injuries suffered by the
victimʹs son, the district court clearly based the upward departure on the victimʹs
physical injuries: a broken nose, black eyes, and a torn breast implant. Moreover, while
the district court concluded that the injuries were not so serious as to constitute a ʺmajor
permanent disabilityʺ that would have warranted a ʺsubstantial departure,ʺ U.S.S.G.
§ 5K2.2, it concluded that the injuries were still ʺserious,ʺ and noted that surgery could
be required. The physical injury enhancement was properly applied.
D. Sentencing Disparity
Charles argues that his sentence was substantively unreasonable because
of an unwarranted sentencing disparity between his sentence and the sentences
imposed on his three co‐defendants. We are not persuaded. Section 3553(a)(6) permits,
but does not require, a district court to consider sentencing disparity among co‐
defendants. United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other
grounds by Kimbrough v. United States, 552 U.S. 85 (2007). Moreover, Charles was not
similarly situated to his co‐conspirators; in addition to playing a significant role in the
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burglaries, he was the only defendant to violently retaliate against a witness, accusing
his girlfriend of ʺrattingʺ him out, punching and choking her, and threatening to kill her
and her nine‐year‐old son. Hence, his sentence was substantively reasonable.
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We have considered Christopherʹs and Charlesʹs remaining arguments
and conclude they are without merit. Accordingly, we AFFIRM the judgments of the
district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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