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07-1928-cr United States v. Antonetti



### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT



# SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
O N O RAFTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF AP P E L LATE P ROCEDURE 32.1 AND THIS COURT ’ S LOCAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
D O C UME N T F I L E D W I T H THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE ( W ITH 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. 

### 11 12 - - - - - - - - - - - - - - - - - - - -X UNITED STATES OF AMERICA, 

### 13 Appellee, 

### 14 15 16 -v.- 07-1928-cr 

### 17 18 JOSE ANTONETTI, 

### 19 Defendant-Appellant. 

### 20 - - - - - - - - - - - - - - - - - - - -X 

### 21
APPEARING FOR APPELLANT: LAURIE S. HERSHEY, Law Offices 

### 22 23 of Laurie S. Hershey, Esq., Manhasset, New York. 

### 24 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. 

### 312 

### 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 co

### 22 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.3 

### 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 fewerthan 

### 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”). 

### 30 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. 

### 34 35 36 FOR THE COURT: 

### 37 CATHERINE O’HAGAN WOLFE, CLERK 

### 38 39 40 41