13-769-cr 

United States v. Trudeau 

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 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, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 14th day of April, two thousand fourteen. 

PRESENT: JOHN M. WALKER, JR., 

 DENNY CHIN, 

 Circuit Judges.*

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UNITED STATES OF AMERICA, 

 Appellee, 

 -v- 13-769-cr 

 

WILLIAM A. TRUDEAU, JR., 

 Defendant-Appellant. 

 

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FOR APPELLEE: RAHUL KALE (Robert M. Spector, on 

the brief), Assistant United States 

Attorneys, for Deirdre M. Daly, 

United States Attorney for the 

District of Connecticut. 

FOR DEFENDANT-APPELLANT: ROSS H. GARBER (Paul Stuart Bailin, 

Michael Chase, Shipman & Goodwin 

LLP, Hartford Connecticut and James 

K. Filan, Filan LLC, Westport 

Connecticut, on the brief), Shipman 

& Goodwin LLP, Hartford 

Connecticut. 

 *

 Because Judge Christopher F. Droney, originally assigned to 

the panel, recused himself from this case, the remaining two judges 

issue this order in accordance with Second Circuit Internal Operating 

Procedure E(b).
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 Appeal from the United States District Court for the 

District of Connecticut (Hall, J.). 

 UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND 

DECREED that the case is REMANDED. 

 Defendant-appellant William A. Trudeau appeals from a 

judgment of the district court (Hall, J.) entered on February 15, 

2013, following a jury trial. The jury convicted Trudeau of one 

count of conspiracy to commit bank fraud, mail fraud, and wire 

fraud, in violation of 18 U.S.C. § 1349 ("Count One"), and one 

count of wire fraud ("Count Nine"), in violation of 18 U.S.C. § 

1343, and acquitted him of two counts of bank fraud, three counts 

of mail fraud, and two counts of wire fraud (the "acquitted 

counts"). The district court sentenced him principally to 188 

months' imprisonment. On appeal, Trudeau challenges his sentence 

as procedurally and substantively unreasonable. We assume the 

parties' familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal. 

A. Applicable Law 

 We review a sentence imposed by a district court for 

procedural and substantive reasonableness. United States v. 

Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc). "We 'must 

first ensure that the district court committed no significant 

procedural error, such as failing to calculate (or improperly 

calculating) the Guidelines range, treating the Guidelines as 

mandatory, failing to consider the § 3553(a) factors, selecting a 

sentence based on clearly erroneous facts, or failing to 
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adequately explain the chosen sentence.'" United States v. 

Tutty, 612 F.3d 128, 130-31 (2d Cir. 2010) (quoting Gall v. 

United States, 552 U.S. 38, 51 (2007)). 

 We have held that "the Guidelines direction to apply 

the statutory maximum[ ] . . . serves as the district court's 

'starting point' in selecting a sentence." United States v. 

Dorvee, 616 F.3d 174, 182 (2d Cir. 2010)(quoting Kimbrough v. 

United States, 552 U.S. 85, 108 (2007)). Accordingly, "[i]f the 

district court miscalculates the typical sentence at the outset . 

. . we . . . cannot be sure that the court has adequately 

considered" the proper sentencing factors. Id. We review 

procedural sentencing challenges for plain error if they were not 

raised in the district court. United States v. Villafuerte, 502 

F.3d 204, 208 (2d Cir. 2007). 

 A sentence imposed by the district court is 

substantively unreasonable only if it "cannot be located within 

the range of permissible decisions." Cavera, 550 F.3d at 189 

(internal quotation marks omitted). Because we will not 

substitute our judgment for that of the district court, United 

States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006), we will set 

aside sentencing decisions only in "exceptional cases," Cavera, 

550 F.3d at 189. 

 Section 1B1.2(d) of the United States Sentencing 

Guidelines (the "Guidelines") provides that "[a] conviction on a 

count charging a conspiracy to commit more than one offense shall 

be treated as if the defendant had been convicted on a separate 

count of conspiracy for each offense that the defendant conspired 
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to commit." U.S.S.G. § 1B1.2(d). Application Note 4 of Section 

1B1.2(d) instructs that "[p]articular care must be taken in 

applying subsection (d) because there are cases in which the 

verdict or plea does not establish which offense(s) was the 

object of the conspiracy." U.S.S.G. § 1B1.2(d) cmt. n. 4 ("Note 

4"). In such instances, the district court should apply 

subsection (d) to an object offense only if the district court, 

"were it sitting as a trier of fact, would convict the defendant 

of conspiring to commit that object offense." Id. In that 

event, the burden of proof is beyond a reasonable doubt. See 

United States v. Malpeso, 115 F.3d 155, 167-68 (2d Cir. 1997) 

(considering application of Note 4, formerly U.S.S.G. § 

1B1.2(d) cmt. n. 5). 

 If, however, "the object offenses specified in the 

conspiracy count would be grouped together under § 

3D1.2(d) . . . it is not necessary to engage in the foregoing 

analysis." U.S.S.G. § 1B1.2(d) cmt. n. 4. Accordingly, as with 

any sentencing factor, the district court has the "authority to 

determine [this] sentencing factor[ ] by a preponderance of the 

evidence[,] . . . [which] does not violate the Due Process Clause 

of the Fifth Amendment." United States v. Vaughn, 430 F.3d 518, 

525 (2d Cir. 2005). In concluding that Note 4 is constitutional, 

we have explained that "[b]ecause [a] conspiracy conviction is 

satisfied if any one of the objects is proved beyond a reasonable 

doubt, the multiplicity of objects can only be, and certainly is, 

relevant to sentencing." Malpeso, 115 F.3d at 168. 
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 The Supreme Court has recently held that "[a]ny fact 

that, by law, increases the penalty for a crime is an 'element' 

that must be submitted to the jury and found beyond a reasonable 

doubt." Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013). 

Accordingly, "any fact that increase[s] the prescribed statutory 

maximum sentence must be an 'element' of the offense to be found 

by the jury." Id. at 2157 (citing Apprendi v. New Jersey, 530 

U.S. 466, 483 (2000)). 

 The statutory maximum sentence for committing or 

conspiring to commit wire fraud is 20 years. See 18 U.S.C. 

§§ 1343, 1349. If the wire fraud "affects a financial 

institution," however, the statutory maximum for committing or 

conspiring to commit wire fraud is 30 years. See id. The 

statutory maximum sentence for conspiring to commit bank fraud is 

30 years. See 18 U.S.C. § 1341. 

B. Application 

 First, Trudeau claims that the district court erred in 

its application of the Guidelines "by rejecting the jury's 

determination of the object of the multi-object conspiracy 

charged in Count One." Appellant's Br. at 19. This argument 

fails because the district court did not reject the jury's 

determination, but rather properly applied Note 4. As an initial 

matter, Trudeau's contention that the acquitted counts 

demonstrate that the jury did not find the objects of the 

conspiracy associated with those counts fails because the jury 

could convict for conspiracy even if the substantive crimes were 

not proven. Likewise, the verdict did not establish which 
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offense or offenses –- bank fraud, mail fraud, and/or wire fraud 

–- were the objects of the conspiracy. See U.S.S.G. § 1B1.2(d) 

cmt. n. 4. Indeed, the jury was instructed that to convict 

Trudeau under Count One it "need not find that the conspirators 

agreed to accomplish all three objectives." Accordingly, as the 

district court concluded, Note 4 was relevant to the sentencing 

determination. 

 Moreover, the district court correctly applied Note 4. 

Because "the object offenses specified in the conspiracy count 

would be grouped together under § 3D1.2(d)," the district court 

did not need to find the objects of the conspiracy beyond a 

reasonable doubt. See U.S.S.G. § 1B1.2(d) cmt. n. 4. Instead, 

the district court only needed to find the objects by a 

preponderance of the evidence, which it did. Hence, we find no 

error in the district court's application of Note 4. 

 Second, Trudeau contends that even if the district 

court correctly applied Note 4, its application violated his 

constitutional rights. We disagree. We reject Trudeau's 

argument that the application of Note 4 violated his Fifth 

Amendment right to due process because the district court was not 

required to find the object offenses grouped pursuant to § 

3D1.2(d) beyond a reasonable doubt. Indeed, we have explicitly 

held that the district court has the "authority to determine 

sentencing factors by a preponderance of the evidence" and that 

this authority "does not violate the Due Process Clause of the 

Fifth Amendment." Vaughn, 430 F.3d at 525. 
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 Trudeau's Sixth Amendment challenge also fails. As we 

have made clear, "[b]ecause [a] conspiracy conviction is 

satisfied if any one of the objects is proved beyond a reasonable 

doubt, the multiplicity of objects can only be, and certainly is, 

relevant to sentencing." Malpeso, 115 F.3d at 168. Accordingly, 

the district court correctly recognized its ability to consider 

the conduct alleged in Count One to determine Trudeau's sentence, 

despite the fact that the acquitted counts were based on the same 

conduct. 

 Trudeau contends that the Supreme Court's recent 

decision in Alleyne v. United States demands a different result. 

The central inquiry pursuant to Alleyne, however, is whether the 

district court found "[a]ny fact that, by law, increase[d] the 

penalty for a crime." 133 S.Ct. at 2155. Here, the district 

court did not make any such finding, with one caveat we address 

below. Specifically, the district court's consideration of the 

conduct alleged in Count One to determine, among other things, 

the amount of loss and the number of victims that resulted from 

the conspiracy did not increase the penalty for Trudeau's 

offenses by law. See id. at 2155. Instead, the district court 

considered the conduct as relevant to exercising its discretion 

within the legally prescribed statutory range. See id. at 2163 

(explaining that the decision in Alleyne is "wholly consistent 

with the broad discretion of judges to select a sentence within 

the range authorized by law."). Accordingly, Trudeau's 

constitutional challenges fail. 
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 We do find, however, that the district court committed 

procedural error by failing to acknowledge the correct statutory 

maximum sentence for Counts One and Nine. Specifically, the 

district court determined that the applicable Guidelines range 

was 210 to 262 months' imprisonment, even though the statutory 

maximum sentence for conspiring to commit or committing wire 

fraud that does not affect a financial institution is 20 years. 

See 18 U.S.C. §§ 1343, 1349. Moreover, the PSR stated, without 

explanation, that the statutory maximum sentence pursuant to 18 

U.S.C. §§ 1343 and 1349 was 30 years. 

 We note that the jury would have needed to find at 

least one additional fact beyond a reasonable doubt for the 30-

year statutory maximum to apply to Count One and/or Count Nine. 

See Alleyne, 133 S.Ct. at 2155. Specifically, the jury needed to 

find beyond a reasonable doubt that either the conspiracy to 

commit wire fraud or the substantive wire fraud count "affect[ed] 

a financial institution," or that bank fraud was an object of the 

conspiracy. See 18 U.S.C. §§ 1341, 1343, 1349. It is not clear 

from the jury's verdict, however, that either determination was 

made. Indeed, at oral argument, the Government acknowledged that 

the jury should have made a finding as to whether Trudeau's 

conspiracy to commit wire fraud "[a]ffected a financial 

institution." Accordingly, the Government conceded, and we 

agree, that the applicable statutory maximum sentence for each 

offense was 20 years. 

 Even though Trudeau did not object to the statutory 

maximum sentence below, we conclude that the error was plain. It 
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implicated Trudeau's "substantial rights, as it seriously 

affect[ed] the fairness, integrity, or public reputation of the 

judicial proceedings." Tutty, 612 F.3d at 131 (internal 

quotation marks omitted and alteration in original). Moreover, 

even though the district court imposed a sentence under the 20-

year statutory maximum, because of its "miscalculat[ion] . . 

. at the outset," we "cannot be sure that the court . . . 

adequately considered" the proper sentencing factors. Dorvee, 

616 F.3d at 182. Accordingly, we remand the case so that the 

court may reconsider Trudeau's sentence in light of a 20-year 

statutory maximum sentence for each offense. 

 Finally, Trudeau claims that his sentence was 

substantively unreasonable. Even where we find procedural error, 

"we may review for both procedural error and substantive 

unreasonableness in the course of the same appeal." Tutty, 612 

F.3d at 131. We do so here –- especially as we recognize the 

district court's discretion on remand to impose the same 188-

month sentence as it is below the 20-year statutory maximum 

sentence -- and find that the district court did not commit 

substantive error. We reject Trudeau's argument that "the 

sentence imposed as a result of the district court's factfinding was unconstitutionally disproportionate and unreasonable 

based on the jury verdict" for the reasons that we discuss above. 

Appellant's Br. at 37. 

 Further, the district court carefully considered the 

factors provided in 18 U.S.C. § 3553(a). In particular, it noted 

that "with respect to the individual victims of [Trudeau's] fraud 
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scheme, [he] cause[d] serious harm to them, to their well being, 

[and] to their economic security." App. at 274. Moreover, the 

district court emphasized that Trudeau's pattern of "looking for 

the next victim to keep [his] house of cards up from the victims 

that [he] h[ad] already sucked dry," warranted a sentence to 

"protect[ ] the public from further crimes." Id. In light of 

these factors, we find that the 188-month sentence imposed by 

the district court was well "within the range of permissible 

decisions." Cavera, 550 F.3d at 191. 

 In sum, except in one respect, we conclude that the 

district court properly applied Note 4 and we find the sentence 

was substantively reasonable. Nevertheless, the case is REMANDED

solely for the district court to consider whether it would have 

sentenced Trudeau differently if it had understood the statutory 

maximum sentence was 20 years for each count. If so, it may 

resentence Trudeau anew. If not, the judgment shall stand. This 

panel will retain jurisdiction over any subsequent appeal 

pursuant to United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 

1994). Accordingly, either party may notify the Clerk of a 

renewed appeal within fourteen days of the district court's 

decision. See id. Trudeau's motion for an order granting his 

release pending appeal is DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk