11-4506

United States v. Cosmo

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

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 20th day of September, two thousand twelve,

Present: ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

RICHARD C. WESLEY,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

 -v- 11-4506

NICHOLAS COSMO,

Defendant-Appellant.

 

Appearing for Appellant: Bruce R. Bryan, Syracuse, N.Y.

 

Appearing for Appellee: Grace M. Cucchissi, Assistant United States Attorney (Susan

Corkery and Demetri M. Jones, Assistant United States Attorneys,

on the brief) for Loretta E. Lynch, United States Attorney for the

Eastern District of New York, Brooklyn, N.Y. 

Appeal from the United States District Court for the Eastern District of New York 

(Hurley, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 
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Defendant-Appellant Nicholas Cosmo pleaded guilty to one count of wire fraud, in

violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of 18 U.S.C. § 1341. He

was sentenced principally to 300 months’ imprisonment. Cosmo now appeals his sentence,

asserting that it was substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, procedural history, and specification of issues for review.

We consider the substantive reasonableness of the sentence under an abuse of discretion

standard, regardless of whether the sentence was inside or outside the Guidelines range. Gall v.

United States, 552 U.S. 38, 51 (2007). “As to substance, we will not substitute our own

judgment for the district court’s on the question of what is sufficient to meet the § 3553(a)

considerations in any particular case. We will instead 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) (internal quotation marks and citation omitted). 

At the outset, we note that as part of his guilty plea, Cosmo stipulated to a Guidelines

range of imprisonment of 324 to 405 months’ imprisonment. The sentence Cosmo received, 300

months, was thus below the low end of the Guidelines range. While Guidelines sentences are

not presumptively reasonable, in “the overwhelming majority of cases, a Guidelines sentence

will fall comfortably within the broad range of sentences that would be reasonable in the

particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). Though

he makes numerous arguments, Cosmo has failed to show that his below-Guidelines sentence

could “not be located within the range of permissible decisions.” Cavera, 550 F.3d at 189.

Cosmo’s first argument is that the district court erred in imposing consecutive sentences. 

We review a district court’s decision to impose consecutive sentences for “abuse of discretion.”

United States v. Matera, 489 F.3d 115, 124 (2d Cir. 2007). In this case, the district court had not

only the statutory authority to impose consecutive sentences, see 18 U.S.C. § 3584(a) (“If

multiple terms of imprisonment are imposed on a defendant at the same time . . . , the terms may

run concurrently or consecutively . . . .”), but also a direction under the Guidelines to do so to

reach the appropriate total punishment, see U.S.S.G. § 5G1.2(d) (“If the sentence imposed on the

count carrying the highest statutory maximum is less than the total punishment, then the sentence

imposed on one or more of the other counts shall run consecutively, but only to the extent

necessary to produce a combined sentence equal to the total punishment. In all other respects,

sentences on all counts shall run concurrently, except to the extent otherwise required by law.”).

We likewise note that Cosmo was informed by the district court that his sentences could run

consecutively for up to 40 years, the statutory maximum on each count. The district court thus

did not err as a procedural matter in imposing consecutive sentences.

As to substantive reasonableness, in determining whether to impose a consecutive

sentence, the sentencing court “shall consider, as to each offense for which a term of

imprisonment is being imposed, the factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). 

The district court clearly did that, and did so carefully. It may be true that the counts of

conviction belong to a “single scheme,” as Cosmo argues, but the Guidelines and our case law

explicitly permit consecutive sentences under such circumstances. In addition, the scheme was

hardly, as Cosmo suggests now, confined to two “single instance[s]” in which investors were

defrauded. The court in imposing sentence on this plea was considering a multi-year Ponzi
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scheme, undertaken by a recidivist offender who began committing the instant crime within

months of finishing his previous fraud sentence. The fraud took in thousands of middle- and

lower-income investors, many of whom lost pensions, college funds and homes; others simply

became destitute. In light of the clear statutory and Guidelines authority, and the magnitude of

Cosmo’s crimes, it was not an abuse of discretion for the district court to impose consecutive

sentences.

The remainder of Cosmo’s arguments (e.g., his age, his gambling addiction, his good

works, his family, similar sentences, his need for rehabilitation and his cooperation) essentially

amount only to a list of factors a district court should have considered in imposing sentence—

which, without exception, the district court in this case did. At most they are factors which could

have allowed the district court to impose a different sentence. What they are not are factors

which compelled it do so. The court appropriately considered appellant’s arguments, along with

the factors dictated by 18 U.S.C. § 3553; it simply reached a different conclusion than appellant

about how far those arguments could take him. The district court’s considered imposition of

sentence in this case was well within the range of permissible decisions. 

We have considered the remainder of appellant’s arguments and found them to be

without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk