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14-2797-cr (L) United States v. Johansen 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 for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 3 7th day of January, two thousand fifteen. 4 5 Present: ROSEMARY S. POOLER, 6 DEBRA ANN LIVINGSTON, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges. 9 _____________________________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee, 14 15 16 v. 14-2797-cr(L), 17 14-2799(CON) 18 19 20 JOHN JOHANSEN, 21 22 Defendant-Appellant. 23 __________________________________________ 24 25 26 Appearing for Appellant: Alan S. Futerfas (Ellen B. Resnik, on the brief), Law Offices of 27 Alan S. Futerfas, New York, NY. 28 29 Appearing for Appellee: Daniel A. Spector, Assistant United States Attorney, of Counsel 30 (Amy Busa, Assistant United States Attorney, of Counsel), for 31 Loretta E. Lynch, United States Attorney for the Eastern District 32 of New York, Brooklyn, NY. 33 34 1 Appeal from the United States District Court for the Eastern District of New York 2 (Townes, J.). 3 4 5 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 6 AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED. 7 8 9 John Johansen appeals from the July 31, 2014 judgments of the United States District 10 Court for the Eastern District of New York (Townes, J.) principally sentencing him to 28 11 months’ imprisonment and imposing forfeiture and restitution orders. We assume the parties’ 12 familiarity with the underlying facts, procedural history, and specification of issues for review. 13 14 We review a district court’s sentencing decisions for procedural error under a “deferential 15 abuse-of-discretion standard,” United States v. Cavera,
550 F.3d 180, 189 (2d Cir. 2008) 16 (internal quotation marks omitted), which “incorporates de novo review of questions of law 17 (including interpretation of the Guidelines) and clear-error review of questions of fact,” United 18 States v. Legros,
529 F.3d 470, 474 (2d Cir. 2008). 19 20 “A district court commits procedural error where it . . . selects a sentence based on 21 clearly erroneous facts . . . .” United States v. Robinson,
702 F.3d 22, 38 (2d Cir. 2012). To hold 22 that a factual finding is “clearly erroneous,” we must be “left with the definite and firm 23 conviction that a mistake has been committed.” Cavera,
550 F.3d at 204(internal quotation 24 marks omitted). However, where “the district court’s account of the evidence is plausible in light 25 of the record viewed in its entirety, the court of appeals may not reverse it even though 26 convinced that had it been sitting as the trier of fact, it would have weighed the evidence 27 differently.” United States v. Mi Sun Cho,
713 F.3d 716, 722 (2d Cir. 2013) (quoting Anderson v. 28 City of Bessemer City, N.C.,
470 U.S. 564, 573–74 (1985) (internal quotation marks omitted)). 29 30 Johansen argues that the district court committed procedural error by relying on an 31 erroneous factual finding about his financial condition and by impermissibly considering his 32 inability to pay the forfeiture money judgment in imposing sentence. 33 34 We do not agree with Johansen’s characterization of the record. The transcript of the 35 sentencing hearing does not support Johansen’s assertion that the district court found that he 36 transferred property to others in order to render himself judgment-proof. Rather, the district court 37 accurately described Johansen’s assets and commented that the victims of his scheme were 38 unlikely to receive restitution given his impecunious state. The district court’s remarks evince no 39 indication that it considered Johansen’s inability to pay restitution as an aggravating factor in 40 imposing sentence. See Williams v. Illinois,
399 U.S. 235, 240–42 (1970) (holding that an 41 individual may not be held in continued confinement beyond the statutory maximum because of 42 his failure to pay a fine). The district court also accurately described Johansen’s failure to pay 43 the forfeiture money judgment. The transcript of the sentencing proceeding does not support 44 Johansen’s contention that the district court considered this factor in selecting the term of 45 imprisonment. Accordingly, we find no procedural error. 46 47 2 1 We have considered the remainder of Johansen’s arguments and find them to be without 2 merit. The judgments of the district court hereby are AFFIRMED. 3 4 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 3
Document Info
Docket Number: 14-2797-cr (L)
Citation Numbers: 588 F. App'x 69
Filed Date: 1/7/2015
Precedential Status: Non-Precedential
Modified Date: 1/13/2023