13‐4770‐cr United States v. Getto

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 30th day of September, two thousand fourteen.

PRESENT: PIERRE N. LEVAL, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee,

v. 13‐4770‐cr

MATTHEW GETTO, Defendant‐Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR APPELLEE: Margaret S. Graham, Michael A. Levy, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York. FOR DEFENDANT‐APPELLANT: Stephanie M. Carvlin, Law Office of Stephanie M. Carvlin, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Baer, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

On October 28, 2010, following a bench trial on stipulated facts,

defendant‐appellant Matthew Getto was found guilty of conspiracy to commit wire

fraud and mail fraud through telemarketing, in violation of

and

2326(2). On March 25, 2011, the district court sentenced Getto principally to 150

monthsʹ imprisonment, ordered restitution in the amount of $8.2 million, and ordered

forfeiture of $10 million. On appeal, we affirmed Gettoʹs conviction, but concluded that

the district court committed procedural error by failing to make ʺthe required

particularized findingsʺ as to the number of victims and the loss amount attributable to

Getto. United States v. Getto,

(2d Cir. 2013). Accordingly, we

remanded the case for resentencing. See

.

On remand, the district court sentenced Getto principally to 144 monthsʹ

imprisonment, and imposed $8.2 million in restitution and $8.2 million in forfeiture.

Getto appeals from the judgment of conviction entered on December 16, 2013, arguing

that the district court committed procedural error in imposing his sentence. We assume

‐ 2 ‐

the partiesʹ familiarity with the facts, the procedural history, and the issues presented

for review.

A. Applicable Law

ʺWe review a sentence for procedural . . . reasonableness under a

ʹdeferential abuse‐of‐discretion standard.ʹʺ United States v. Thavaraja,

(2d Cir. 2014) (quoting Gall v. United States,

(2007)). A district court

commits procedural error when, among other things, it ʺmakes a mistake in its

Guidelines calculationʺ or ʺrests its sentence on a clearly erroneous finding of fact.ʺ

United States v. Cavera,

(2d Cir. 2008). ʺWhere we identify procedural

error in a sentence, but the record indicates clearly that ʹthe district court would have

imposed the same sentenceʹ in any event, the error may be deemed harmless, avoiding

the need to vacate the sentence and to remand the case for resentencing.ʺ United States

v. Jass,

(2d Cir. 2009) (quoting Cavera,

).

ʺLoss for purposes of the fraud guideline [of the United States Sentencing

Guidelines] . . . is defined as ʹthe greater of actual loss or intended loss.ʹʺ United States v.

Certified Envtl. Servs., Inc.,

(2d Cir. 2014) (quoting U.S.S.G. § 2B1.1 cmt.

3(A)). ʺʹActual lossʹ means the reasonably foreseeable pecuniary harm that resulted

from the offense,ʺ U.S.S.G. § 2B1.1 cmt. 3(A)(i), whereas ʺʹ[i]ntended lossʹ . . . means the

pecuniary harm that was intended to result from the offense,ʺ id. § 2B1.1 cmt. 3(A)(ii).

In determining loss, ʺ[t]he sentencing court is only required to make a ʹreasonable

‐ 3 ‐

estimate of the loss.ʹʺ United States v. Lacey,

(2d Cir. 2012) (quoting

U.S.S.G. § 2B1.1 cmt. 3(C)).

Under the Guidelines, ʺ[t]he vulnerable victim enhancement applies

where ʹthe defendant knew or should have known that a victim of the offense was a

vulnerable victim.ʹʺ United States v. Kerley,

(2d Cir. 2008) (quoting

U.S.S.G. § 3A1.1(b)(1)). ʺA ʹvulnerable victimʹ is defined as one ʹwho is unusually

vulnerable due to age, physical or mental condition, or who is otherwise particularly

susceptible to the criminal conduct.ʹʺ Id. (quoting U.S.S.G. § 3A1.1 cmt. 2). The

vulnerability of the victim ʺmust bear some nexus to the criminal conductʺ and ʺthe

defendant generally must have singled out the vulnerable victims from a larger class of

potential victims.ʺ United States v. McCall,

(2d Cir. 1998). Moreover,

although ʺ[a]n inquiry into a victimʹs vulnerability must be individualized and must not

be based on broad generalizations about victims based upon their membership in a

class,ʺ Kerley,

(internal quotation marks omitted), ʺclass membership

alone may be sufficient to support the enhancementʺ when ʺthe criminal shapes the

nature of the crime . . . to target a class of victims that are virtually all particularly

vulnerable to that crime,ʺ McCall,

.

B. Application

Getto makes several challenges to the procedural reasonableness of his

sentence.

‐ 4 ‐

First, Getto argues that the district court committed procedural error by

failing to make specific factual findings to support the amount of loss attributable to

him. We disagree. On remand, the district court applied an 18‐level enhancement for

loss, after concluding that the loss attributable to Getto was between $2.5 million to $7

million. See U.S.S.G. § 2B1.1(b)(1)(J). To make this determination, the district court

relied on Gettoʹs admission in the Presentence Report that ʺthe amount of loss that

should be attributed to [him was] between one and two and a half million dollars. Zero

from [a site he knew was operating a fraudulent scheme, but in which he did not

participate], [$]1[.]65 million from [a site from which he and others operated a

fraudulent scheme], [and] [$]630,000 from [a site where he managed a fraudulent

scheme].ʺ App. at 268 (quoting PSR ¶ 30). On appeal, the parties agree that Getto

admitted only $2.28 million in loss attributable to him, which would have placed him in

the $1 million to $2.5 million category pursuant to U.S.S.G. § 2B1.1(b)(1), for which a 16‐

level enhancement applies. See U.S.S.G. § 2B1.1(b)(1)(I). The district court, however,

construed Gettoʹs statement as admitting to $2.5 million in loss, and the district court

therefore erred in concluding that Gettoʹs admission placed him in the $2.5 million to $7

million category.

Nevertheless, we conclude that because ʺthe record indicates clearly that

ʹthe district court would have imposed the same sentence,ʹʺ the error was ʺharmless.ʺ

Jass,

(quoting Cavera,

). We are confident that the district

‐ 5 ‐

court found more than $2.5 million in losses. While Getto admitted loss of only $2.28

million, the record shows ‐‐ and the district court found ‐‐ that the intended loss was far

greater. The Government argued at sentencing that the ʺintended loss [was] far in

excess of [$]7 millionʺ based on ʺall the leads, all the phone calls, [and] . . . the video

showing . . . Getto dividing the[ ] leads among various co‐conspirators.ʺ App. at 279.

The district court stated, in turn, that it was ʺprepared to indicate not only that the

scope included far more th[a]n the two‐and‐a[‐]half‐plus million that [it] . . . us[ed] for

[its] guideline calculation, but certainly that there were, in fact, any number of phone

calls that were made between the various [sites] as well as the video.ʺ

Finally, the

district court explained that it applied an 18‐level enhancement, rather than the 20‐level

enhancement that the PSR recommended, even though ʺin fact, there isnʹt much

question . . . that the intended loss was far greater.ʺ

. In light of these findings,

we conclude there is no ʺneed to vacate the sentence and to remand the case for

resentencingʺ because the district courtʹs misinterpretation of Gettoʹs admission was

harmless. Jass,

.

Second, Getto argues the district court erred in imposing a vulnerable

victim enhancement pursuant to U.S.S.G. § 3A1.1(b). We disagree. In applying the

enhancement, the district court observed that ʺolder people are indeed vulnerable to

this kind of scam.ʺ App. at 290. It then found that here ʺthere [was] evidence to the

effect that [Getto and his co‐conspirators] would actually look for people who were not

‐ 6 ‐

only 70 or 80 years old . . . . but, in fact, there [was] some proof to the effect that [Getto]

would actually look for people who had problems of one sort or another in the

reasoning world, and focus in on them.ʺ Id. at 290‐91. Indeed, before applying the

enhancement, the district court heard testimony from Joan Vogel that her mother, a

victim of Gettoʹs schemes, suffered from dementia. The district court, then, did not

make ʺbroad generalizations about victims based upon their membership in a class.ʺ

Kerley,

(internal quotation marks omitted). Rather, it found that, because

of their age and mental state, the vulnerability of Gettoʹs victims bore ʺsome nexus to

the criminal conduct,ʺ and that Getto ʺsingled [them] out . . . from a larger class of

potential victims.ʺ McCall,

. Accordingly, the application of a vulnerable

victim enhancement was appropriate.

Third, Getto claims that the district court erred in refusing to consider his

sentencing disparity argument. As an initial matter, we note that ʺa district court may ‐‐

but is not required to ‐‐ consider sentencing disparity among co‐defendants under

(a)(6).ʺ United States v. Johnson,

(2d Cir. 2009). Moreover,

Gettoʹs claim is belied by the record. The district court discussed defense counselʹs

position that Getto deserved leniency because his extradited co‐conspirators would

serve only two‐thirds of their sentences in Israel, whereas Getto would likely serve his

full sentence in the United States. Accordingly, the district court did not refuse to

‐ 7 ‐

consider the argument. It simply was not persuaded that these circumstances

warranted a lighter sentence.

Fourth, Getto argues that the district court impermissibly treated Gettoʹs

first sentence as a ʺbaselineʺ at resentencing. Again, this argument is contrary to the

record. The district court did not adhere to its previous findings on, among other

things, the loss attributable to Gettoʹs schemes. It calculated a lower offense level under

the Guidelines and it imposed a lower sentence. Gettoʹs claim that the original sentence

was a ʺbaselineʺ for his current sentence fails.

Finally, Getto argues that the district court erred in imposing restitution

and forfeiture amounts of $8.2 million each, because it did not make particularized

findings as to whether the scope of Gettoʹs conspiratorial agreement, as opposed to the

overall conspiracy, resulted in these losses. Getto failed to make this argument at the

time of his initial appeal. Because it was ʺripe for reviewʺ then, Getto waived the

argument and we do not consider it here. United States v. Quintieri,

(2d Cir. 2002) (internal quotation marks omitted).

We have reviewed Gettoʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

‐ 8 ‐