18

- 1831

United States v. Gilmartin

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 D ATABASE

(WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING TO 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, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 5 th day of May , two thousand twenty

. 3

4

PRESENT: RAYMOND J. LOHIER, JR.

, 5

JOSEPH F. BIANCO

, 6

MICHAEL H. PARK, 7

Circuit Judges

. 8

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UNITED STATES OF AMERICA, 10

11

Appellee

, 12

13

v. 14

15

DAVID GILMARTIN, N o . 18

- 1831 16

17

Defendant

- Appellant

. 18

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20

FOR DEFENDANT

- APPELLANT : David Gilmartin, pro se

, 21

Barstow, CA

. 222 FOR APPELLEE: Stanley J. Okula, Jr., Nanette L. 1

Davis, Special Assistant United 2

States Attorneys, Karl 3

Metzner, Assistant United 4

States Attorney, for Geoffrey S. 5

Berman, United States 6

Attorney for the Southern 7

District of New York, New 8

York, NY. 9

Appea l from a judgment of the United States District Court for the 10

Southern District of N ew York ( Valerie E. Caproni

, Judge ). 11

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 12

AND DECREED that the amended judgment and orders of the D istrict C ourt are 13

AFFIRMED. 14

David Gilmartin appeals from an amended judgment and orders

, entered 15

on May 9, 2018 and June 5, 2018, by the United States District Court for the 16

Southern District of New York (Caproni, J. ) modi fying the restitution order that 17

was imposed at Gilmartin’s sentencing and denying Gilmartin’s motion to 18

reconsider the modification . We assume the parties’ familiarity with the 19

underlying facts and prior record of proceedings, to which we refer only as 20

necessary to explain our decision to affirm. 213 As an initial matter, we note that the parties dispute whether our review 1

on appeal is limited to the D istrict C ourt’s denial of the motion for 2

reconsideration, or whether we can review the underlying order that modifi ed 3

the restitution order

. Given the limited scope of the notice of appeal, which by 4

its terms designate s only the District Court’s order denying the motion for 5

reconsideration, w e agree with the Government that our review is limited to 6

whether the District Court’s denial of reconsideration was an abuse of discretion

. 7

See Shrader v. CSX Transp., Inc. , 70 F.3d 255, 256 (2d Cir. 1995)

. 8

We conclude that the District Court did not abuse its discretion in denying 9

Gilmartin’s motion for reconsideration. See United States v. Yalincak

, 853 F.3d 10

629, 63 5 (2d Cir. 2017). The motion failed to raise any new arguments that the 11

District Court had not already addressed in its May 1, 2018 opinion and order. 12

The motion also did not point to controlling authority or evidence that the 13

District Court overlooked in its original orde r

. See Shrader , 70 F.3d at 257. 14

E ven assuming that we have jurisdiction to review the underlying 15

modification

, s ee Van Buskirk v. United Grp. of Cos., Inc. , 935 F.3d 49, 5 2 (2d Cir. 16

2019)

, we conclude that the District Court did not err in modifying Gilmartin’s 174 restitution order

. We review the imposition of a restitution order for abuse of 1

discretion, but our review is de novo whe n the defendant asserts an error of law. 2

United States v. Thompson , 792 F.3d 273, 276

– 77 (2d Cir. 2015). A district court 3

may modify the restitution schedule if there is a “material change in the 4

defendant’s economic circumstances.” 18 U.S.C. § 3664(k). 5

There is no doubt that Gilmartin’s economic circumstances materially 6

change d after his release from prison . At the time of sentencing, Gilmartin was 7

not collecting Social Security benefits . F ollowing his release, Gilmartin elected to 8

receive Social Security benefits, which sati s fies the statutory test for a “material 9

change in the defendant’s economic circumstances.” 18 U.S.C. § 3664(k); see also 10

United States v. Grant , 235 F.3d 95, 100

– 01 (2d Cir. 2000) ( holding that the release 11

of frozen funds and the consequent availability of the funds following 12

defendant’s release from prison constituted a “materi al change”)

. Gilmartin also 13

argues that the sentencing judge intentionally exempted any Social Security 14

retirement benefits from restitution payments. I n the absence of more explicit 15

language that t he sentencing j udge even considered Gilmartin’s Social Security 16

benefits

, w e cannot conclude that those benefits were purposefully exempted 175 from these payments as Gilmartin claims

. 1

We have considered Gilmartin ’s remaining arguments and conclude that 2

they are without merit. For the foregoin g reasons, the amended judgment and 3

order s of the D istrict C ourt are AFFIRMED. 4

FOR THE COURT: 5

Catherine O = Hagan Wolfe, Clerk of Court 6

7