United States v. Delgiorno
Opinion of the Court
SUMMARY ORDER
Defendant-appellant John J. DelGiorno appeals from the District Court’s judgment of conviction entered February 12, 2013. On appeal, DelGiorno argues that his sentence was procedurally and substantively unreasonable. We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.
We review sentences for unreasonableness. See United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc). This standard “applies both to ‘the sentence itself and to ‘the procedures employed in arriving at the sentence.’ ” United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006)). The procedural inquiry focuses on whether
DelGiorno argues that the District Court erred procedurally by failing to (1) calculate the applicable Guidelines range, (2) properly consider the § 3553(a) factors, and (3) adequately explain the sentence imposed. DelGiorno’s claims are without merit. We address each argument in turn.
First, the District Court satisfied its obligation to calculate the applicable Guidelines range. The presentencing submissions reviewed by the District Court, including the Presentence Report (“PSR”), along with both parties’ statements at sentencing, uniformly articulated the correct Guidelines range. At sentencing, the District Court stated that it was “not going to give [DelGiorno] 97 months” (the bottom of the applicable Guidelines range), but would instead impose a below-Guidelines sentence. And the court’s Statement of Reasons (“SOR”) explicitly adopted the PSR’s findings, including its accurate Guidelines calculation. Although the District Court failed to satisfy the mandate of 18 U.S.C. § 3553(c), because it did not “state in open court the reasons for its imposition of’ the non-Guidelines sentence, DelGiorno did not object to its failure and, hence, we review for plain error and conclude that the omission was harmless. See United States v. Molina, 356 F.3d 269, 276-78 (2d Cir. 2004).
Second, although we affirm on the issue of the District Court’s consideration of the § 3553(a) factors, we note some troubling circumstances. At DelGiorno’s plea hearing, the District Court made an “agreement” with DelGiorno:
We have previously held that where a specific sentence “had an air of inevitability,” we would find “procedural error” if the record “is ambiguous” as to whether the District Court considered the Section 3553 factors. United States v. Corsey, 723
Third, the District Court did not otherwise fail to adequately explain the sentence imposed. The District Court explained that DelGiorno’s sentence was justified by, among other things, his repeated violation of pretrial release conditions. See App’x 29-30. The District Court also explained that, despite these failures, DelGiorno’s below-Guidelines sentence was justified given his young age and various other mitigating circumstances set out in DelGiorno’s pre-sen-tencing submissions.
Finally, DelGiorno offers no argument for why his substantially below-Guidelines sentence was substantively unreasonable. In any event, we conclude that DelGiomo’s sentence was not substantively unreasonable.
We have considered DelGiorno’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.
. There is evidence that this "agreement” was reached prior to the plea. In a letter to the court, defense counsel stated that the sentence was discussed "[p]rior to the plea being taken.” Moreover, at the plea hearing itself, before placing the agreement on the record, the court asked DelGiorno whether “anyone made any promises to you as to what your sentence will be other than what I am going to put on the record eventually?” Federal Rule of Criminal Procedure 11(c)(1) provides that "[t]he court must not participate” in plea negotiations. This issue is not before us, however, so we do not reach it.
Reference
- Full Case Name
- United States v. John J. DELGIORNO
- Status
- Published