11

‐ 4479

‐ cr

United States v. Ryan



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2015

No. 11

‐ 4479

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

M ATTHEW J OHN R YAN

,

Defendant

‐ Appellant

.

On Appeal from the United States District Court

for the Northern District of New York

S UBMITTED : O CTOBER 23, 2015

D ECIDED : N OVEMBER 25, 2015

Before: K EARSE

, W ALKER

, and C ABRANES

, Circuit Judges

.

On appeal from an October 12, 2011 judgment of the United

States District Court for the Northern District of New York (Norman

A. Mordue, Judge ) sentencing defendant

‐ appellant Matthew John2 Ryan principally to a term of imprisonment of 121 months, Ryan

challenges the District Court’s calculation of the number of victims

of his crime and the substantive reasonableness of his sentence. We

conclude that there was no error, as the District Court properly

counted each married couple jointly holding investments as two

individual “victims” within the meaning of that term as used in

Section 2B1.1(b)(2) of the United States Sentencing Guidelines, and

the sentence was not substantively unreasonable under the

circumstances. We therefore AFFIRM ; but the cause is REMANDED

to the District Court for the sole purpose of making ministerial

corrections to the first page of the amended judgment by deleting

the reference to 18 U.S.C. § 1341 and changing “78(j)(b); (ff)” to

“78j(b); 78ff.”

Ransom Reynolds, Steven D. Clymer,

Assistant United States Attorneys, for

Richard S. Hartunian, United States

Attorney for the Northern District of New

York, Syracuse, NY, for Appellee.

David J. Taffany, Anderson, Moschetti &

Taffany, PLLC, Latham, NY, for Defendant

‐ Appellant.3 J OSÉ A. C ABRANES

, Circuit Judge :

Defendant

‐ appellant Matthew John Ryan (“Ryan”) has

appealed from an October 12, 2011 judgment of the District Court

sentencing him principally to a term of imprisonment of 121 months

following his February 22, 2011 guilty plea to one count of securities

fraud in violation of 15 U.S.C. §§ 78j(b) and 78ff, 17 C.F.R. § 240.10b

‐

5, and 18 U.S.C. § 2. The District Court incorporated that

punishment into an amended judgment, dated March 3, 2015, and

entered May 1, 2015 (the “May 1, 2015 amended judgment”), from

which Ryan has not filed a second notice of appeal. Because we held

his original appeal in abeyance pending completion of the

restitution proceedings that resulted in the amended judgment, 1 and

because the amended judgment supersedes the original judgment,

we treat Ryan’s appeal as a challenge to so much of the amended

judgment as sentenced him to 121 months’ imprisonment. 2

1 The original judgment was a final judgment, despite the fact that the

District Court did not enter a restitution order until it entered the amended

judgment on May 1, 2015. See Gonzalez v. United States

, 792 F.3d 232, 237 (2d Cir.

2015) (holding that a defendant has “two opportunities to appeal: from an initial

sentence, even if some aspects of the sentence are not final; and from the final

order disposing of the case in the district court”). Accordingly, this Court has

had jurisdiction since October 2011, when Ryan timely filed a notice of appeal of

the original judgment.

2 The amended judgment (like the original judgment) contains two errors

that the District Court should correct. First, although the amended judgment

correctly identifies the offense to which Ryan pleaded guilty as “Securities

Fraud,” it incorrectly identifies 18 U.S.C. § 1341 as one of the operative statutes.

See Amended Judgment at 1, United States v. Ryan

, No. 10

‐ CR

‐ 319 (NAM)4 Ryan raises two arguments on appeal. First, he argues that the

District Court erred in determining that his offense involved 50 or

more victims. Second, he argues that his sentence was substantively

unreasonable. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues

on appeal.

We begin with Ryan’s first argument. “[A] trial judge in the

federal judicial system generally has wide discretion in determining

what sentence to impose.” United States v. Tucker

, 404 U.S. 443, 446

(1972); see also United States v. Corsey

, 723 F.3d 366, 374 (2d Cir. 2013)

(noting that district courts enjoy “broad discretion” in sentencing

“because they are [ ] better positioned institutionally to determine

the appropriate sentence in a particular case”). “[B]efore making that

determination, a judge may appropriately conduct an inquiry broad

in scope, largely unlimited either as to the kind of information he

may consider, or the source from which it may come.” Tucker

, 404

U.S. at 446; accord Alleyne v. United States

, 133 S. Ct. 2151, 2163 n.6

(2013) (same); U.S. Sentencing Guidelines Manual § 6A1.3(a) (U.S.

Sentencing Comm’n 2010) (“2010 Guidelines”) (“In resolving any

dispute concerning a factor important to the sentencing

(N.D.N.Y. May 1, 2015), ECF No. 72 (“Amended Judgment”). Ryan was charged

in the indictment with several counts of mail fraud under Section 1341, see A

‐ 18–

19, but those counts were dismissed pursuant to his plea agreement, see A

‐ 32, A

‐

114. Second, the amended judgment refers to “15 U.S.C. §§ 78(j)(b); (ff),” which

should instead read “15 U.S.C. §§ 78j(b); 78ff.” See Amended Judgment at 1.5 determination, the court may consider relevant information without

regard to its admissibility under the rules of evidence applicable at

trial, provided that the information has sufficient indicia of

reliability to support its probable accuracy.”). Additionally, at

sentencing, “the district court may make credibility determinations

which this Court will not disturb unless clearly erroneous.” United

States v. McLean

, 287 F.3d 127, 133 (2d Cir. 2002) (internal quotation

marks omitted); see also United States v. Guang

, 511 F.3d 110, 123 (2d

Cir. 2007) (“We give strong deference to findings based on

credibility determinations.”).

At the time of Ryan’s sentencing, Section 2B1.1(b)(2)(B) of the

United States Sentencing Guidelines (the “Guidelines”) provided

that, “[i]f the [defendant’s] offense

. . . involved 50 or more victims,

[the offense level should be] increase[d] by 4 levels.” 2010

Guidelines § 2B1.1(b)(2)(B); see also United States v. Lacey

, 699 F.3d

710, 714 (2d Cir. 2012); United States v. Gonzalez

, 647 F.3d 41, 61 (2d

Cir. 2011). 3 The Guidelines define “victim” in pertinent part as “any

person who sustained any part of the actual loss,” and “person” as

“includ[ing] individuals, corporations, companies, associations,

3 Effective November 1, 2015, Section 2B1.1(b)(2)(B) was amended to set

new thresholds for offense

‐ level increases according to the number of and extent

of harm caused to victims. But this amendment does not affect our analysis here,

because “[g]enerally, sentencing courts are required to apply the Guidelines

Manual in effect on the date that the defendant is sentenced.” United States v.

Brooks

, 732 F.3d 148, 149 (2d Cir. 2013) (citing 18 U.S.C. § 3553(a)(4)(A)(ii)); 2010

Guidelines § 1B1.11(a)).6 firms, partnerships, societies, and joint stock companies.” 2010

Guidelines § 2B1.1 cmt. n.1.

“The question of whether a given individual is a victim within

the meaning of [Section] 2B1.1(b)(2)

. . . is an issue of law,” which we

review de novo

, and “[t]he number of persons or entities who are

victims within the meaning of

. . . [Section] 2B1.1(b)(2) is a question

of fact. A district court’s factual findings at sentencing need be

supported only by a preponderance of the evidence, and such

findings may be overturned only if they are clearly erroneous.”

Gonzalez

, 647 F.3d at 62 (alterations, citations, and internal quotation

marks omitted).

Upon review of the record and relevant law, we are convinced

that the District Court did not err, much less clearly err, in

determining that Ryan’s offense involved 50 or more victims. In

making this determination, the District Court relied on a “restitution

list” prepared by the United States Attorney’s Office for the

Northern District of New York. A

‐ 95. The restitution list was based

on a report from the Securities and Exchange Commission,

responses to questionnaires that the Federal Bureau of Investigation

(“FBI”) sent to investors potentially harmed by Ryan’s fraud, and

interviews of those investors conducted by an FBI agent. A

‐ 88–90. It

therefore “ha[d] sufficient indicia of reliability to support its

probable accuracy.” 2010 Guidelines § 6A1.3(a).

The restitution list included the names of more than 50

victims. See GA

‐ 4–7. Some of these victims were the spouses of other7 victims, which prompted a colloquy between the District Court and

the government. See A

‐ 90–91 (“[T]here are many instances you had

spouses that had invested. In those cases you would have two

victims, not just one victim. And so based on that

. . ., we calculated

that it would be more than 50 victims.”). But this fact does not alter

our conclusion, as we agree with the Seventh Circuit that “it [is]

proper for [a] district court to count a married couple holding

investments jointly as two individual victims for the purposes of

applying the section 2B1.1(b)(2) sentence enhancement.” United

States v. Harris

, 718 F.3d 698, 703 (7th Cir. 2013); see also United States

v. Densmore

, 210 F. App’x 965, 971 (11th Cir. 2006) (non

‐ precedential

but persuasive unpublished opinion) 4 (“[B]oth [a] husband and [a]

wife are victims under § 2B1.1(b)(2) when jointly held money is

taken

. . . .”). As the commentary to Section 2B1.1 makes clear, “ any

person who sustained any part of the actual loss” is a “victim.” 2010

Guidelines § 2B1.1 cmt. n.1 (emphasis supplied). Thus, the District

Court properly counted each married couple jointly holding

4 See Fed. R. App. P. 32.1 advisory committee’s note to 2006 adoption

(“The citation of unpublished opinions issued before January 1, 2007, will

continue to be governed by the local rules of the circuits.”). Compare 11th Cir. R.

36

‐ 2 (“Unpublished opinions are not considered binding precedent, but they may

be cited as persuasive authority.”), with 2d Cir. R. 32.1.1(b) (“[A] party may not

cite a summary order of this court issued prior to January 1, 2007, except: (A) in a

subsequent stage of a case in which the summary order has been entered, in a

related case, or in any case for purposes of estoppel or res judicata; or (B) when a

party cites the summary order as subsequent history for another opinion that it

appropriately cites.”).8 investments as two individual “victims” within the meaning of that

term as used in Section 2B1.1(b)(2).

Further, we find no error in the District Court’s rejection of

Ryan’s claim that “there were only 31 or 32 victims” on the ground

that “the list he submitted with his sentencing memorandum [was]

based on his personal recollection and [was] unsubstantiated.” A

‐ 95.

It is clear that the District Court declined to credit Ryan’s assertion, a

decision that is entitled to substantial deference. See, e.g.

, United

States v. Norman

, 776 F.3d 67, 78 (2d Cir. 2015). Accordingly, we

affirm the District Court’s determination that Ryan’s offense

involved 50 or more victims.

With respect to Ryan’s second argument—that his sentence

was substantively unreasonable—“[w]e will set aside a district

court’s substantive determination only in exceptional cases where

the trial court’s decision cannot be located within the range of

permissible decisions.” United States v. Wagner

‐ Dano

, 679 F.3d 83, 95

(2d Cir. 2012) (alterations and internal quotation marks omitted).

Further, “[w]hile we have declined to adopt a per se rule, we

recognize that in the overwhelming majority of cases, a Guidelines

sentence will fall comfortably within the broad range of sentences

that would be reasonable in the particular circumstances.” United

States v. Ingram

, 721 F.3d 35, 37 (2d Cir. 2013) (alteration and internal

quotation marks omitted).

Here, Ryan’s sentence fell within the Guidelines range, A

‐ 111–

12, and we see nothing in the record to suggest that this is “one of9 those exceptional cases in which the imposition of a within

‐

Guidelines sentence is substantively unreasonable,” United States v.

Chu

, 714 F.3d 742, 748 (2d Cir. 2013) (internal quotation marks

omitted). We therefore also affirm the District Court’s substantive

determination.

CONCLUSION

We have considered all of Ryan’s arguments on appeal and

have found them to be without merit. The May 1, 2015 amended

judgment of the District Court is therefore AFFIRMED ; but the

cause is REMANDED to the District Court for the sole purpose of

making ministerial corrections to the first page of the amended

judgment by deleting the reference to 18 U.S.C. § 1341 and changing

“78(j)(b); (ff)” to “78j(b); 78ff.”