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18-3272-cr 

United States v. Merlino 

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 7th day of November, two thousand nineteen. 

PRESENT: JOSÉ A. CABRANES, 

JOSEPH F. BIANCO, 

 Circuit Judges, 

EDWARD R. KORMAN, 

District Judge. *

 

UNITED STATES OF AMERICA, 

Appellee, 18-3272-cr 

v. 

JOSEPH MERLINO, AKA JOEY

Defendant-Appellant, 

PASQUALE PARRELLO, AKA PATSY, AKA PAT, EUGENE

O'NOFRIO, AKA ROOSTER, COMAD IANNIELLO, ISRAEL TORRES, 

AKA BUDDY, ANTHONY ZINZI, AKA ANTHONY BOY, 

ANTHONY VAZZANO, AKA TONY THE WIG, AKA MUSCLES

ALEX CONIGLIARO, FRANK BARBONE, RALPH BALSAMO, 

PASQUALE MAIORINO, AKA PATTY BOY, JOHN SPIRITO, AKA 

* Judge Edward R. Korman, of the United States District Court for the Eastern District of New 

York, sitting by designation. 
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JOHNNY JOE, VINCENT CASABLANCA, AKA VINNY, MARCO

MINUTO, PAUL CASSANO, AKA PAUL CASSONE, DANIEL

MARINO, JR., AKA DANNY, JOHN LEMBO, AKA JOHNNY, 

MITCHELL FUSCO, AKA MITCH, REYNOLD ALBERTI, AKA 

RANDY, VINCENT TERRACCIANO, AKA BIG VINNY, JOSEPH

TOMANELLI, AKA JOE, AGOSTINO CAMACHO, AKA AUGIE, 

NICHOLAS DEVITO, AKA NICKY, ANTHONY CASSETTA, AKA 

TONY THE CRIPPLE, NICHOLAS VUOLO, AKA NICKY THE WIG, 

BRADFORD WEDRA, MICHAEL POLI, AKA MIKE POLIO, 

PASQUALE CAPOLONGO, AKA PAT C, AKA MUSTACHE PAT, 

AKA.FISH, AKA PATSY, ANTHONY DEPALMA, AKA HARPO, 

AKA HARP, JOHN TOGNINO, AKA TUGBOAT, MARK

MAIUZZO, AKA STYMIE, JOSEPH DIMARCO, HAROLD

THOMAS, AKA HARRY, RICHARD LACAVA, AKA RICHIE, 

VINCENT THOMAS, AKA VINNY, ANTHONY CAMISA, AKA 

ANTHONY THE KID, FRANK TRAPANI, AKA HARPO, ANTHONY

CIRILLO, CARMINE GALLO, JOSEPH FALCO, AKA JOE CLUB, 

FRANCESCO DEPERGOLA, AKA FRANK, RALPH SANTANIELLO, 

LAURENCE KEITH ALLEN, AKA KEITH ALLEN, CRAIG BAGON, 

BRADLEY SIRKIN, AKA BRAD, WAYNE KREISBERG, 

Defendants.

 

FOR APPELLEE: Anna M. Skotko, Assistant United States 

Attorney (Max Nicholas, Assistant United 

States Attorney, on the brief), for Geoffrey S. 

Berman, United States Attorney, Southern 

District of New York, New York, NY. 

FOR DEFENDANT-APPELLANT: Edwin J. Jacobs, Jr., Jacobs & Barbone, 

P.A., Atlantic City, NJ, and John C. 

Meringolo, Meringolo & Associates, P.C., 

New York, NY. 

Appeal from an October 19, 2018 judgment of the United States District Court for the 

Southern District of New York (Richard J. Sullivan, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is 

AFFIRMED. 

Defendant-Appellant Joseph Merlino (“Merlino”) appeals from an October 19, 2018 

judgment convicting him, following a guilty plea, of one count of interstate transmission of wagering 
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information, in violation of 18 U.S.C. §§ 1084 and 2. Merlino was sentenced principally to 24 

months’ imprisonment, to be followed by a one-year term of supervised release, and imposed a $100 

mandatory special assessment. Although his advisory term of imprisonment under the United States 

Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 10 to 16 months, the statutory maximum 

sentence was 24 months. Merlino appeals both the procedural and substantive reasonableness of his 

sentence. We assume the parties’ familiarity with the underlying facts, the procedural history of the 

case, and the issues on appeal. 

“We review the procedural and substantive reasonableness of a sentence under a deferential 

abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (citation 

omitted). “A district court commits procedural error where it fails to calculate (or improperly 

calculates) the . . . Guidelines range, treats the . . . Guidelines as mandatory, fails to consider the [18 

U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to 

explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citation 

omitted). 

Our review of a sentence for substantive reasonableness is “particularly deferential.” United 

States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence as substantively 

unreasonable only if it is “so shockingly high, shockingly low, or otherwise unsupportable as a 

matter of law that allowing [it] to stand would damage the administration of justice.” Id. (internal 

quotation marks and citation omitted). 

I. Procedural Reasonableness 

 Merlino argues that the District Court procedurally erred by failing to “credit” him for the 

time he spent in custody (i.e., 108 days) on a violation of supervised release in the Eastern District of 

Pennsylvania—a sentence that was later vacated by the Third Circuit. Merlino argues that he is 

entitled to this “credit” pursuant to U.S.S.G. § 5G1.3(b) because he experienced a term of 

imprisonment resulting from a prior violation of supervised release that, in turn, constitutes 

“relevant conduct” to the instant offense of conviction. Even assuming, for the sake of argument 

only, that the prior violation of supervised release constitutes “relevant conduct” under the 

Guidelines, Merlino’s procedural challenge lacks merit. 

If the prior violation of supervised release constitutes “relevant conduct,” then the District 

Court was permitted, but not required, to “credit” the 108 days that Merlino served in the Eastern 

District of Pennsylvania. Merlino relies on U.S.S.G. § 5G1.3(b). But that provision requires the 

District Court to “credit” the time served on a prior sentence only where the sentence is subject to an 
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“undischarged term of imprisonment.” U.S.S.G. § 5G1.3(b) (emphasis added).1 That is not the case 

here. Because the Third Circuit vacated the sentence of imprisonment resulting from the violation of 

supervised release and ordered Merlino to be released from custody, there is no “undischarged 

term” that the District Court could have considered. 

To the extent Merlino argues that the 108 days qualify as a “discharged term of 

imprisonment,” then the Guidelines permit, but do not require, a “downward departure” in the 

sentence for the instant offense of conviction. U.S.S.G. § 5G1.3(b), Application Note 5 (“In the case 

of a discharged term of imprisonment, a downward departure is not prohibited if [U.S.S.G. § 5G1.3(b)] 

would have applied to that term of imprisonment had the term been undischarged.”) (emphasis 

added). In other words, the Guidelines expressly commit the decision to “credit” a prior discharged 

term of imprisonment by a “downward departure” to the District Court’s discretion. Id.; see also

U.S.S.G. § 5K2.23 (“A downward departure may be appropriate if the defendant (1) has completed 

serving a term of imprisonment; and (2) [U.S.S.G. § 5G1.3(b)] would have provided an adjustment 

had that completed term of imprisonment been undischarged at the time of sentencing for the 

instant offense.”) (emphasis added).2

 

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 U.S.S.G. § 5G1.3(b) states in relevant part that “[i]f . . .a term of imprisonment resulted from 

another offense that is relevant conduct to the instant offense of conviction,” then “the court shall 

adjust the sentence [for the instant offense] for any period of imprisonment already served on the 

undischarged term of imprisonment if the court determines that such period of imprisonment will 

not be credited to the federal sentence by the Bureau of Prisons” and shall impose the current 

sentence “to run concurrently to the remainder of the undischarged term of imprisonment.” 

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 Notably, the two district court decisions relied upon by Merlino wholly undermine his position on 

appeal. See United States v. Malloy, 845 F. Supp. 2d 475, 482–83 (N.D.N.Y. 2012) (explaining that the 

mandatory “[§] 5G1.3 deals with the imposition of a sentence, which is subject to an undischarged 

term of imprisonment,” whereas the discretionary “§ 5K2.23 . . . addresses a situation where an 

adjustment under section 5G1.3 is unavailable because the term of imprisonment for relevant 

conduct has been discharged” (internal quotation marks, alterations, and citations omitted)); United 

States v. Rosado, 254 F. Supp. 2d 316, 320 (S.D.N.Y. 2003) (finding that “there is no undischarged 

term of imprisonment that would make § 5G1.3(b) applicable,” but holding that the discharged term 

“served in jail should be credited by way of this permitted, but discretionary, downward departure” 

recognized in Application Note 5 to § 5G1.3) (emphasis added). Similarly, Merlino’s reliance on our 

summary order in United States v. Boyle is misplaced since that order had no precedential effects and, 

in any event, has no bearing on the question presented in this case. 283 F. App’x 825, 827 (2d Cir. 

2007) (holding that “the district court’s retrospective application of the revised Guidelines worked to 

the disadvantage of the appellant, violating the Ex Post Facto Clause”), aff’d on other grounds, 556 U.S. 

938 (2009). 
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Merlino has not pointed to any part of the record that shows that the District Court abused 

its discretion. To the contrary, in the process of determining the appropriate sentence, the District 

Court acknowledged its review of, among other things, “Merlino’s appeal in the Third Circuit for a 

violation of supervised release” and “all the opinions in that case.” Joint App. at 295. Despite its 

acknowledgment of Merlino’s prior term of imprisonment, the District Court stated at sentencing 

that it had “no hesitation in imposing the maximum sentence [permissible under the statute], which 

is 24 months.” Id. at 342–43. 

In the circumstances presented here, we have no difficulty concluding that the District Court 

was not obligated to “credit” Merlino for the 108 days served in the Eastern District of Pennsylvania 

and that it did not “abuse its discretion” in excluding the credit from the sentence imposed. 

II. Substantive Reasonableness 

Merlino also argues that his sentence is substantively unreasonable because the District 

Court’s use of charged criminal conduct that did not result in a conviction at trial, as relevant 

conduct at sentencing, violated his Fifth and Sixth Amendment rights under the U.S. Constitution. 

In making this argument, Merlino admits that: (1) he “did not raise a Fifth or Sixth Amendment 

challenge” at the time of sentencing and, thus, his constitutional claim should be reviewed on appeal 

for “plain error”; and (2) the claim is contrary to precedent and is being made only to preserve it in 

the event the law changes while the appeal is pending. Appellant Br. at 12. 

“Plain error review requires a defendant to demonstrate that (1) there was error, (2) the error 

was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously affected 

the fairness, integrity or public reputation of judicial proceedings.” United States v. Burden, 860 F.3d 

45, 53 (2d Cir. 2017). 

Here, as Merlino expressly concedes, “the error was not ‘plain’ . . . because binding 

precedent including, e.g., United States v. Watts, 519 U.S. 148 (1997), currently forecloses” Merlino’s 

constitutional objection. Appellant Br. at 12; see, e.g., Watts, 519 U.S. at 157 (“[A] jury’s verdict of 

acquittal does not prevent the sentencing court from considering conduct underlying the acquitted 

charge, so long as that conduct has been proven by a preponderance of the evidence.”); see also, e.g., 

United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005) (holding that “a district court may sentence 

a defendant taking into account acquitted conduct”). 

Finally, in the circumstances presented, we conclude that a 24-month sentence is simply not 

substantively unreasonable. 
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CONCLUSION 

We have reviewed all of the remaining arguments raised by Merlino on appeal and find them 

to be without merit. For the foregoing reasons, we AFFIRM the October 19, 2018 judgment of the 

District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court