United States v. Kontogiannis (Michael) , 522 F. App'x 49 ( 2013 )

12-3162-cr
United States v. Kontogiannis (Michael)
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 COURT’S 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 “SUMMARY ORDER”). 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
5th day of June, two thousand thirteen.
Present:
RALPH K. WINTER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
____________________________________________________
United States of America,
Appellee,
v. No. 12-3162-cr
Thomas Kontogiannis, et al.,
Defendants,
John T. Michael,
Defendant-Appellant.
____________________________________________________
FOR APPELLANT: Raymond R. Granger and Howard B. Zakai, Granger & Associates
LLC, New York, NY.
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FOR APPELLEE: Susan Corkery, Shannon C. Jones, Rena Paul, Assistant United
States Attorneys, for Loretta E. Lynch, United States Attorney for
the Eastern District of New York, Brooklyn, NY.
____________________________________________________
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Matsumoto, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant John T. Michael appeals from the district court’s judgment
convicting him of conspiring to commit bank and wire fraud and sentencing him, in relevant
part, to a prison term of 12 months and 1 day. On appeal, Michael argues that the district court
erroneously considered, as factors weighing in favor of a longer sentence, his prior convictions
from the Southern District of California or the conduct underlying those convictions. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the specific issues raised on appeal.
We generally review a district court’s sentencing decisions for both substantive and
procedural reasonableness.1 United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007).
“Reasonableness review is similar to review for abuse of discretion and may require reversal
when the district court’s decision cannot be located within the range of permissible decisions or
is based on a legal error or clearly erroneous factual finding.” Id. (internal quotation marks
omitted). “Substantive reasonableness involves the length of the sentence imposed in light of the
factors enumerated under 18 U.S.C. § 3553(a),” while “[p]rocedural reasonableness concerns the
procedures a district court employs in arriving at a sentence.” Id.1
The parties dispute whether Michael’s arguments should be reviewed for plain error under Fed.
R. Crim. P. 52(b). Because we find that Michael’s arguments are meritless under the more
lenient reasonableness standard of review, we decline to resolve this issue.
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Here, the district court was explicitly permitted to consider Michael’s prior convictions in
the Southern District of California and the conduct underlying those convictions pursuant to 18
U.S.C. § 3553(a)(1), which required the court to fashion its sentence based on “the nature and
circumstances of the offense and the history and characteristics of the defendant.” Contrary to
Michael’s assertion, he was not thereby punished twice for the same conduct. See, e.g., Witte v.
United States, 515 U.S. 389, 397 (1995) (rejecting the notion that “consideration of uncharged
conduct in arriving at a sentence within the statutorily authorized punishment range constitutes
‘punishment’ for that conduct”); Williams v. New York, 337 U.S. 241, 247 (1949) (“Highly
relevant—if not essential—to [the sentencing court’s] selection of an appropriate sentence is the
possession of the fullest information possible concerning the defendant’s life and
characteristics.”). A different conclusion is not warranted by the district court’s finding that the
conduct underlying Michael’s Southern District of California convictions was part of the instant
offense and thus played a role in calculating his total offense level under the Sentencing
Guidelines. Cf. United States v. Maloney, 406 F.3d 149, 152 (2d Cir. 2005) (“We have
repeatedly held . . . that a district court calculating a Guidelines sentence may apply multiple
Guidelines provisions based on the same underlying conduct where that is the result clearly
intended by Congress and the Sentencing Commission.”).
Moreover, contrary to Michael’s assertion, the district court’s consideration of his
Southern District of California convictions did not constitute “impermissible double counting.”
“Impermissible ‘double counting’ is the judicial augmentation of a defendant’s sentence in
contravention of [an] applicable statute or Sentencing Guideline.” United States v. Torres-
Echavarria, 129 F.3d 692, 699 (2d Cir. 1997) (emphasis omitted). Not surprisingly, Michael
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fails to identify a particular statute or Guideline that the district court violated by treating the
convictions at issue as factors weighing in favor of a longer sentence.
Finally, the district court did not create an unwarranted sentence disparity between
Michael and codefendant Thomas Kontogiannis by finding that Michael’s Southern District of
California convictions weighed in favor of a longer sentence without making a corresponding
finding in sentencing Kontogiannis. While a district court may consider “similarities and
differences among co-defendants” as a factor in imposing a sentence, it is not required to, and it
need not engage in perfectly parallel analyses of personal and historical traits when sentencing
co-defendants. United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other
grounds by United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2009) (en banc).
Nor does the substantive difference between Michael’s and Kontogiannis’s sentences
establish an unwarranted disparity. “[E]ven assuming arguendo that 18 U.S.C. § 3553(a)(6) can
support a reduced sentence designed to eliminate or diminish disparity between the sentences
imposed on co-defendants, those co-defendants would have to be similarly situated because the
provision mandates that sentencing judges take into account ‘unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.’” United
States v. Fernandez, 443 F.3d 19, 31-32 (2d Cir. 2006) (footnote omitted) (emphasis in
Fernandez) (quoting 18 U.S.C. § 3553(a)(6)). As Michael himself recognizes, he and
Kontogiannis were neither similarly situated nor treated as such by the district court. Thus, there
is no basis for concluding that the disparity between the sentences of Michael and Kontogiannis
was unwarranted. To the extent that Michael intends to argue that the disparity between the two
sentences at issue should have been even greater, he has not cited any relevant legal authority for
such an argument.
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We have considered Michael’s remaining arguments on appeal and find them to be
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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