18-1965-cr 

United States v. DiMartino 

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.

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 

16th day of December, two thousand nineteen. 

 

PRESENT: PETER W. HALL, 

JOSEPH F. BIANCO, 

Circuit Judges, 

 TIMOTHY C. STANCEU, 

 Judge.* 

_____________________________________ 

United States of America, 

Appellee, 

v. 18-1965 

Kevin DiMartino, 

 Defendant-Appellant.

_____________________________________ 

For Appellant: BRUCE R. BRYAN, ESQ., Syracuse, NY. 

For Appellee: TIFFANY H. LEE, Assistant United States Attorney, for 

James P. Kennedy, Jr., United States Attorney for the 

Western District of New York, Rochester, NY. 

*Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by 

designation. 
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 Appeal from a judgment of the United States District Court for the Western District 

of New York (Geraci, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED. 

Defendant-Appellant Kevin DiMartino appeals the June 28, 2018 judgment of the 

United States District Court for the Western District of New York (Geraci, J.) sentencing him 

to 125 months’ imprisonment to be followed by fifteen years’ supervised release and imposing 

several conditions of supervision. DiMartino pleaded guilty to knowing possession of child 

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The plea agreement stipulated that 

DiMartino’s Sentencing Guidelines range would be 78 to 97 months of imprisonment, but 

DiMartino’s post-plea conduct led the United States Probation Office to revise its 

recommendation to a Guidelines range of 168 to 210 months based on the application of 

additional sentencing enhancements and the denial of a sentencing reduction for acceptance 

of responsibility. The District Court did allow for the three-level sentencing reduction for 

acceptance of responsibility but applied the other two upward enhancements for obstruction 

of justice and distribution of images, which resulted in a Guidelines range of 121 to 151 

months’ imprisonment. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the arguments on appeal. 

DiMartino first challenges the procedural reasonableness of his 125-month sentence, 

arguing that the District Court erred by applying a two-level enhancement for obstruction of 

justice. A district court commits procedural error if it “(1) fails to calculate the Guidelines 
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range; (2) is mistaken in the Guidelines calculation; (3) treats the Guidelines as mandatory; (4) 

does not give proper consideration to the § 3553(a) factors; (5) makes clearly erroneous factual 

findings; (6) does not adequately explain the sentence imposed; or (7) deviates from the 

Guidelines range without explanation.” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009). 

“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.” 

United States v. Ryan, 806 F.3d 691, 694 (2d Cir. 2015) (internal quotation marks and citation 

omitted). Although we review factual findings for clear error, “[w]hether those facts 

constitute obstruction of justice . . . is a matter of legal interpretation subject to de novo review.” 

United States v. Ayers, 416 F.3d 131, 133 (2d Cir. 2005). 

DiMartino contends that there was insufficient evidence that he intended to obstruct 

justice. Specifically, he argues that (1) the District Court should not have credited his 

boyfriend’s recantation of his prior statement that DiMartino was never alone with the 

boyfriend’s young son, and (2) there is insufficient evidence that DiMartino asked his friend, 

Paula Nuccie, to obtain a statement from DiMartino’s boyfriend saying that DiMartino was 

never alone with the boyfriend’s son. Whether DiMartino had the intent of securing a false 

statement from his boyfriend is a factual matter. See United States v. Riley, 452 F.3d 160, 165 

(2d Cir. 2006). 

We are not persuaded by DiMartino’s argument that his boyfriend’s recantation has 

insufficient indicia of reliability. The text messages between the boyfriend and his son’s 

mother discussing how the boyfriend would leave the child with DiMartino at DiMartino’s 
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house support the District Court’s decision to credit the boyfriend’s recantation rather than 

the prior statement. The phone call recorded by DiMartino’s friends in October 2017 lends 

little credibility to the boyfriend’s prior statement because the phone conversation was 

contrived for DiMartino’s benefit. Nor does the letter from DiMartino’s tenant cast doubt 

on the boyfriend’s admission that he did in fact leave his son alone with DiMartino. The 

tenant’s letter does not state that the tenant was always at DiMartino’s house. And one of 

the occasions when DiMartino was alone with the boyfriend’s son, according to the boyfriend, 

was not at DiMartino’s house but rather in a truck parked at a warehouse. 

It is true, as DiMartino points out, that Nuccie did not testify that DiMartino asked her 

to obtain a statement from the boyfriend saying DiMartino was never alone with the 

boyfriend’s son. Having reviewed all the evidence in the record, however, we find sufficient 

support for the District Court’s inference that DiMartino instructed Nuccie to financially 

support and otherwise assist the boyfriend with the intention of securing the false statement 

from the boyfriend. Nuccie’s testimony, the recorded jail phone calls, and the text messages 

from Nuccie to the boyfriend on January 8, 2018 establish that: DiMartino, while in jail, asked 

Nuccie to provide various forms of assistance to the boyfriend,; Nuccie provided such 

assistance to the boyfriend; Nuccie told DiMartino that she was keeping tabs on the boyfriend 

and making sure he was doing what he was supposed to be doing; Nuccie arranged to have 

the boyfriend write both a character reference and a letter stating that the boyfriend never left 

DiMartino alone with the boyfriend’s son; and Nuccie informed DiMartino, using coded 

allusions, that she got a letter or letters signed by the boyfriend. According to the pre-
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sentence report (“PSR”), moreover, when Nuccie was interviewed by the FBI case agent, 

Nuccie indicated that “DiMartino told her to have [the boyfriend] testify that nothing 

happened between DiMartino and the minor victim” and that “DiMartino advised Nuccie to 

take care of [the boyfriend], paying his cell phone bills, taking his medication, and making sure 

he wasn’t getting in trouble . . . so [the boyfriend] would testify on his behalf.” PSR at 12 

(¶ 50). It is arguably possible that DiMartino asked Nuccie to assist his boyfriend purely out 

of concern for him. But “[w]here there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly erroneous.” United States v. Murphy, 703 

F.3d 182, 188 (2d Cir. 2012). 

DiMartino also challenges the substantive reasonableness of his 125-month sentence. 

We must “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. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 

F.3d 208, 238 (2d Cir. 2007)). “[W]e will reverse the district court’s decision only if the 

sentence imposed amounts to a ‘manifest injustice or shocks the conscience.’” United States 

v. Spoor, 904 F.3d 141, 156 (2d Cir. 2018), cert. denied, 139 S. Ct. 931 (2019) (quoting Rigas, 583 

F.3d at 124) (alteration omitted). 

DiMartino argues, first, that the District Court should not have used the child 

pornography Guideline as a starting point for determining his sentence, citing United States v. 

Dorvee, 616 F.3d 174 (2d Cir. 2010), and United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017). It 

is true that this Court has expressed concern about the child pornography Guideline—“an 
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eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily 

generate unreasonable results,” Dorvee, 616 F.3d at 188—but the sentence imposed in this case 

is hardly comparable to the shockingly high sentences imposed in Dorvee and Jenkins. In 

Dorvee, the district court imposed the statutory maximum of 240 months despite being 

presented with medical evidence that Dorvee was unlikely to initiate sexual conduct with a 

child, 616 F.3d at 183–84, and in Jenkins, the district court imposed 225 months even though 

Jenkins never produced or distributed child pornography or harmed a child, 854 F.3d at 190–

91. 

DiMartino also emphasizes the presence of mitigating factors in his case. The District 

Court gave due consideration, however, to DiMartino’s vulnerability relative to other 

prisoners, his admission of guilt, the burdens imposed by the Sex Offender Registration Act, 

and the evidence of DiMartino’s good character and community service. The District Court 

did not exceed the bounds of its discretion in weighing those factors against the large quantity 

of child pornography that DiMartino possessed, DiMartino’s violation of a condition of his 

release, and his efforts to obstruct justice. 

We have considered DiMartino’s remaining arguments and find them to be without 

merit. The judgment is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court