18

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United States of America v. Mazzara (Kerrigan)

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 12 th day of September two thousand nineteen.

PRESENT: RICHARD C. WESLEY,

DENNY CHIN,

JOSEPH F. BIANCO,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

UNITED STATES OF AMERICA,

Appellee

,

v. 18

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‐ cr (L), 18

‐ 1365

‐ cr (Con)

CHRISTOPHER KERRIGAN,

CHARLES KERRIGAN, AKA DUKE,

Defendants

‐ Appellants

. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

* The Clerk of the Court is directed to amend the caption to conform to the above.‐ 2

‐ FOR APPELLEE: Benet J. Kearney, Assistant United States

Attorney (David W. Denton, Jr., Won S. Shin,

Assistant United States Attorneys, on the brief ),

for Geoffrey S. Berman, United States Attorney

for the Southern District of New York, New

York, New York.

FOR DEFENDANT

‐ APPELLANT Georgia J. Hinde, Law Office of Georgia J.

CHRISTOPHER KERRIGAN: Hinde, New York, New York.

FOR DEFENDANT

‐ APPELLANT Matthew Galluzzo, Galluzzo &

CHARLES KERRIGAN: Arnone LLP, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Forrest, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgments of the district court are AFFIRMED.

Defendants

‐ appellants Christopher Kerrigan ( ʺ Christopher ʺ ) and Charles

Kerrigan ( ʺ Charles ʺ ) appeal from judgments entered April 2, 2018 and April 30, 2018,

respectively, convicting them, following their guilty pleas, of bank burglary and related

crimes. In April 2016, Christopher and Charles burglarized the HSBC bank branch in

Brooklyn, New York. In May 2016, they burglarized the Maspeth Federal Savings Bank

branch in Queens, New York. We assume the parties ʹ familiarity with the underlying

facts, procedural history, and issues on appeal.

Christopher pleaded guilty to conspiracy to commit bank burglary and

bank theft, bank burglary, and bank theft, in violation of 18 U.S.C. §§ 371 and 2113(a)‐ 3

‐ and (b). Christopher was sentenced principally to ninety months ʹ imprisonment

followed by three years ʹ supervised release.

Charles pleaded guilty to conspiracy to commit bank burglary and bank

theft, bank burglary, bank theft, and retaliation against a witness while on pre

‐ trial

release in violation of 18 U.S.C. §§ 371, 2113(a) and (b), and 1513(b)(2). Charles was

sentenced principally to two

‐ hundred months ʹ imprisonment followed by three years ʹ

supervised release.

On appeal, Christopher raises two procedural challenges to his sentence:

the district court ʹ s denial of downward adjustments for acceptance of responsibility and

for mitigating role. Charles raises both procedural and substantive challenges to his

sentence. Procedurally, Charles challenges the district court ʹ s (1) denial of an

adjustment for acceptance of responsibility, (2) grouping analysis, and (3) granting of an

upward departure for physical injury under § 5K2.2. 1 Substantively, Charles challenges

the reasonableness of his sentence as disparate compared to the sentences of his co

‐

defendants.

1 Charles contests the district court ʹ s denial of an adjustment for acceptance of responsibility and

its application of § 5K.2.2 as challenges to the substantive reasonableness of his sentence. Challenges to

Guidelines calculations, however, are evaluated for procedural error. See United States v. Norman

, 776

F.3d 67, 76 (2d Cir. 2015).‐ 4

‐ I. Christopher

A. Acceptance of Responsibility

The district court did not abuse its discretion in denying Christopher a

downward adjustment for acceptance of responsibility. United States v. Cavera

, 550 F.3d

180, 189 (2d Cir. 2008) (reviewing procedural error in sentencing under deferential

abuse of discretion standard). The district court concluded Christopher had not made a

ʺ clear demonstration of acceptance of responsibility ʺ as he persisted in maintaining that

he lacked knowledge of the location of the stolen items and ʺ minimiz[ing] ʺ his role in

the burglary. Christopher App ʹ x at 152

‐ 55; see also U.S.S.G § 3E1.1 & cmt. n.1(E), 3

(providing that ʺ voluntary assistance to authorities in the recovery of the fruits and

instrumentalities of the offense ʺ may be considered in assessing acceptance of

responsibility). The conclusion was reasonable, as the record showed, for example, that

some of the stolen property was recovered from the residences of Christopher ʹ s family

members and associates and that Christopher received some of the stolen property

himself. Hence, Christopher likely knew where the property went and yet he refused to

assist in its recovery.

B. Mitigating Role

The district court properly denied Christopher a mitigating role

adjustment as it found that Christopher was not ʺ substantially less culpable than the

average participant ʺ in the burglary. U.S.S.G. § 3B1.2 cmt. n.3(A). While the district‐ 5

‐ court determined that Christopher did not have decision

‐ making authority, exercised

little discretion, and was not a planner or organizer in a large organizational sense, it

found that he participated in staging the burglary and organizing the getaway vehicle,

he was on a walkie

‐ talkie and acted as a lookout and getaway driver, he benefitted from

the criminal activity, and he understood the scope and structure of the criminal activity.

See U.S.S.G. § 3B1.2 cmt. n.3(C) (noting that a mitigating role adjustment depends on the

totality of the circumstances and outlining factors to be considered by the district court);

United States v. Pitre

, 960 F.2d 1112, 1126

‐ 27 (2d Cir. 1992) (affirming the denial of role

reduction for a lookout who was aware of the extent of the illegal transaction). There

was support in the record for these findings, and therefore the district court did not

abuse its discretion in denying a mitigating role adjustment.

II. Charles

A. Acceptance of Responsibility

The district court ʹ s denial of a downward adjustment for acceptance of

responsibility for Charles is well supported by the record. Not only did Charles fail to

assist with the recovery of stolen goods, but he physically retaliated against his

girlfriend and threatened to kill her son after she cooperated with the Government and

provided information regarding the burglaries. See U.S.S.G. § 3C1.1; United States v.

Savoca

, 596 F.3d 154, 159 (2d Cir. 2010) (noting that obstruction of justice usually

indicates that defendant has not accepted responsibility). Therefore, his argument fails.‐ 6

‐ B. Grouping

Charles did not object to the district court ʹ s grouping analysis, and

therefore we review for plain error. United States v. Alvarado

, 720 F.3d 153, 157 (2d Cir.

2013) (per curiam) (reviewing for plain error procedural challenge to a sentence not

raised before district court). The district court did not err when grouping the multiple

counts pursuant to § 3D1.2 prior to applying a three

‐ level enhancement pursuant to

§ 3C1.1. Because Charles was convicted on more than one count, the district court first

grouped together the counts related to the HSBC and Maspeth burglaries into two

separate groups, while also including the charge of witness retaliation in each of the

burglary groups, pursuant to § 3D1.2(a). See U.S.S.G. § 3C1.1 cmt. n.8 (providing that

ʺ the count for the obstruction offense will be grouped with the count for the underlying

offense under subsection (c) of § 3D1.2 ʺ and the offense level will be increased by two).

Second, the district court applied to both groups enhancements for obstruction of justice

based on witness retaliation. See U.S.S.G §§ 3D1.2(c); 2J1.2 cmt. n.3. The district court

then applied a one

‐ level increase because the two groups were within eight levels of

each other. See U.S.S.G. § 3D1.4. We see no error in the district court ʹ s grouping

analysis.‐ 7

‐ C. Physical Injury

We likewise find no error in the district court ʹ s application of § 5K2.2

when granting an upward departure for significant physical injury. U.S.S.G. § 5K2.2

(permitting upward departure for ʺ significant physical injury ʺ ). Charles contends that

the district court erred by relying on psychological rather than physical injuries. While

it is true that the district court mentioned the psychological injuries suffered by the

victim ʹ s son, the district court clearly based the upward departure on the victim ʹ s

physical injuries: a broken nose, black eyes, and a torn breast implant. Moreover, while

the district court concluded that the injuries were not so serious as to constitute a ʺ major

permanent disability ʺ that would have warranted a ʺ substantial departure, ʺ U.S.S.G.

§ 5K2.2, it concluded that the injuries were still ʺ serious, ʺ and noted that surgery could

be required. The physical injury enhancement was properly applied.

D. Sentencing Disparity

Charles argues that his sentence was substantively unreasonable because

of an unwarranted sentencing disparity between his sentence and the sentences

imposed on his three co

‐ defendants. We are not persuaded. Section 3553(a)(6) permits,

but does not require, a district court to consider sentencing disparity among co

‐

defendants. United States v. Wills

, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other

grounds by Kimbrough v. United States

, 552 U.S. 85 (2007). Moreover, Charles was not

similarly situated to his co

‐ conspirators; in addition to playing a significant role in the‐ 8

‐ burglaries, he was the only defendant to violently retaliate against a witness, accusing

his girlfriend of ʺ ratting ʺ him out, punching and choking her, and threatening to kill her

and her nine

‐ year

‐ old son. Hence, his sentence was substantively reasonable.

* * *

We have considered Christopher ʹ s and Charles ʹ s remaining arguments

and conclude they are without merit. Accordingly, we AFFIRM the judgments of the

district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk