United States v. Generali , 536 F. App'x 142 ( 2013 )

12-4282-cr
United States v. Generali
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 23rd day of October, two thousand thirteen.
5
6 PRESENT: RALPH K. WINTER,
7 DENNIS JACOBS,
8 CHESTER J. STRAUB,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- No. 12-4282-cr
16
17 ROBERT GENERALI,
18 Defendant-Appellant.
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20
21 FOR APPELLEE: CHRISTOPHER M. MATTEI (Robert M.
22 Spector, on the brief) for
23 Deirdre M. Daly, Acting United
24 States Attorney for the District
25 of Connecticut.
26
27 FOR DEFENDANT-APPELLANT: MARJORIE M. SMITH, Brooklyn, New
28 York.
1
1 Appeal from a judgment of the United States District
2 Court for the District of Connecticut (Bryant, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Defendant-appellant Robert Generali appeals from the
9 district court’s sentence of 57 months’ imprisonment for
10 theft from a program receiving federal funds, wire fraud,
11 and filing a false tax return. We assume the parties’
12 familiarity with the underlying facts, the procedural
13 history, and the issues presented for review.
14 1. Acceptance of Responsibility
15 Section 3E1.1(a) of the Sentencing Guidelines provides
16 a two-level reduction if “the defendant clearly demonstrates
17 acceptance of responsibility for his offense.” U.S.S.G. §
18 3E1.1(a) (2011 ed.). “Since the sentencing judge is in a
19 much better position to make the factual assessment of
20 contrition and candor than is an appellate court, the
21 finding of whether the defendant has adequately demonstrated
22 an acceptance of responsibility will not be disturbed unless
23 it is without foundation.” United States v. Rivera, 96 F.3d
24 41, 43 (2d Cir. 1996) (citation omitted).
25 Generali’s sentencing memoranda argued, contrary to the
26 weight of the evidence, that (1) he was authorized to open a
27 fraudulent credit card; (2) his $180,000 spending spree on
2
1 the eve of prosecution paid primarily for legitimate legal
2 expenses; (3) forged checks funded maintenance work rather
3 than personal expenses; and (4) the death of a child in 2008
4 precipitated the crimes. The PSR’s factual findings,
5 adopted by the district court, described Generali’s lack of
6 remorse, sense of entitlement, and failure to mitigate loss.
7 The district court’s determination that Generali did
8 not “clearly demonstrate[] acceptance of responsibility for
9 his offense” is supported by the misrepresentations in
10 Generali’s sentencing memoranda, Generali’s conduct before
11 prosecution, and the PSR’s findings. See, e.g., United
12 States v. McLean, 287 F.3d 127, 133-34 (2d Cir. 2002).1
13 2. Substantive Reasonableness
14 “Reasonableness review does not entail the substitution
15 of our judgment for that of the sentencing judge. Rather,
16 the standard is akin to review for abuse of discretion.
17 Thus, when we determine whether a sentence is reasonable, we
18 ought to consider whether the sentencing judge exceeded the
19 bounds of allowable discretion, committed an error of law in
20 the course of exercising discretion, or made a clearly
1
The district court did err by calculating a total
offense level of 23. The correct total offense level, given
the inapplicability of the § 3E1.1 reduction, was 24. This
error could only have benefited Generali and is not
appealed.
3
1 erroneous finding of fact.” United States v. Fernandez, 443
2 F.3d 19, 27 (2d Cir. 2006) (internal quotation marks and
3 citation omitted); see also United States v. Rigas, 583 F.3d
4 108, 123 (2d Cir. 2009) (reasonableness review is
5 “deferential to district courts and provide[s] relief only
6 in the proverbial ‘rare case’” that “damage[s] the
7 administration of justice because the sentence imposed was
8 shockingly high, shockingly low, or otherwise unsupportable
9 as a matter of law”).
10 The district court’s sentence of 57 months’
11 imprisonment was by no means “shockingly high,”
12 “unsupportable as a matter of law,” or beyond the bounds of
13 discretion. The court reviewed the sentencing factors set
14 out in 18 U.S.C. § 3553(a) and explained that Generali was a
15 “very well compensated” director who, over his five year
16 tenure, embezzled over $400,000 from the Boys & Girls Club
17 of Greater Waterbury to fund a “lavish lifestyle.” The
18 court explicitly considered the goals of specific and
19 general deterrence and Generali’s individual needs.
20 The district court’s evaluation of the sentencing
21 factors was reasonable. There is no reason to disturb the
22 sentence on appeal.
4
1 We have considered all of Generali’s remaining
2 arguments and conclude that they are without merit. The
3 judgment of the district court is hereby affirmed.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
5