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07-1928-cr

United States v. Antonetti

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 27 day of January, two thousand ten. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 GUIDO CALABRESI,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 07-1928-cr

17

18 JOSE ANTONETTI, 

19 Defendant-Appellant.

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22 APPEARING FOR APPELLANT: LAURIE S. HERSHEY, Law Offices

23 of Laurie S. Hershey, Esq.,

24 Manhasset, New York.

25

26 APPEARING FOR APPELLEE: JOHN J. O’DONNELL (Preet

27 Bharara, Andrew L. Fish, on the

28 brief), United States Attorneys

29 Office of the Southern District

30 of New York, New York, New York. 

31
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1 Appeal from a judgment of the United States District

2 Court for the Southern District of New York (Preska, J.). 

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5 AND DECREED that the sentence be AFFIRMED and the matter

6 REMANDED to allow the district court to amend the written

7 judgment. 

8

9 Defendant-Appellant Jose Antonetti appeals his sentence

10 on the grounds that the district court abused its discretion

11 by: sentencing him more severely than his similarly-situated

12 co-defendants, giving insufficient weight to his difficult

13 background, and sentencing him beyond the maximum period

14 explained to him by the court in the plea hearing. We

15 assume the parties’ familiarity with the underlying facts,

16 the procedural history, and the issues presented for review.

17

18 [1] First, Antonetti argues that his sentence is improper 

19 because it created an unwarranted sentencing disparity

20 between him and his co-defendants. A district court may, in

21 its discretion, “consider disparities between co22 defendants.” United States v. Frias, 521 F.3d 229, 236 (2d

23 Cir. 2008); see also id. at n.8. If a district court

24 chooses to do so, we require only that the court’s reasoning

25 be “logical[]” and consistent with the factors listed in 18

26 U.S.C. § 3553(a)(1). See United States v. Wills, 476 F.3d

27 103, 110 (2d Cir. 2007) (internal quotation marks omitted),

28 abrogated on other grounds by United States v. Cavera, 550

29 F.3d 180, 191 (2d Cir. 2008) (in banc). Here, Antonetti and

30 his co-defendants are not so similarly-situated as to render

31 any sentencing disparity unjustified. See United States v.

32 Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). The district

33 court did not err in this regard. 

34

35 [2] Second, Antonetti argues that the district court failed 

36 to give sufficient mitigating weight to his background. In

37 imposing sentence, a district court must “satisfy us that it

38 has considered the parties’ arguments and that it has a

39 reasoned basis for exercising [its] own legal decisionmaking

40 authority.” Cavera, 550 F.3d at 193. A “brief statement of

41 reasons” generally suffices; “we do not require robotic

42 incantations that the district court has considered each of

43 the § 3553(a) factors.” Id. (internal quotation marks

44 omitted). In this case, the district court clearly met its

45 obligations when it explicitly recognized defense counsel’s

46 argument regarding Antonetti’s background. 
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1 [3] Third, Antonetti contends that his sentence is improper

2 because it violated the plea agreement and exceeded the

3 district court’s explanation at the plea hearing that the

4 maximum possible sentence was twenty years. Antonetti was

5 sentenced to 168 months’ imprisonment--72 months fewer than

6 the 20-year maximum. Antonetti seems to argue that because

7 91 months of the 168-month sentence were to run

8 consecutively to his undischarged federal sentence, the

9 court actually imposed a sentence of 259 months (168 + 91),

10 which is 19 months greater than the applicable maximum. 

11 Antonetti’s position has no basis in the law; that 91 months

12 of his sentence were set to run consecutively does not

13 change the fact that he received a 168-month sentence. See

14 United States v. Parkins, 25 F.3d 114, 118-19 (2d Cir.

15 2005). Moreover, Antonetti had no right to be told at the

16 plea hearing that his sentence might run consecutively to

17 his undischarged federal sentence. See Wilson v. McGinnis,

18 413 F.3d 196, 199 (2d Cir. 1998).

19

20 [4] We do agree with both parties, however, that the

21 written judgment erroneously shows the sentence as being 161

22 months rather than the 168 months that was actually imposed. 

23 We therefore remand this case for the limited purpose of

24 allowing the district court to correct the written judgment

25 in this regard. See United States v. Jacques, 321 F.3d 255,

26 263 (2d Cir. 2003) (explaining that when there is a conflict

27 between an unambiguous oral sentence and the written

28 judgment, the oral sentence controls and “the proper remedy

29 is to remand for amendment of the written judgment”).

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31 Finding no merit in Antonetti’s remaining arguments, we

32 hereby AFFIRM the sentence and REMAND to allow the district

33 court to amend the written judgment.

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36 FOR THE COURT:

37 CATHERINE O’HAGAN WOLFE, CLERK

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