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16-3250-cr 

United States v. Fiumano 

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 23rd day of January, two thousand eighteen. 

 

PRESENT: REENA RAGGI, 

GERARD E. LYNCH, 

RAYMOND J. LOHIER, JR., 

Circuit Judges. 

---------------------------------------------------------------------- 

UNITED STATES OF AMERICA, 

Appellee, 

v. No. 16-3250-cr 

DIONYSIUS FIUMANO, 

Defendant-Appellant, 

PED ABGHARI, AKA TED ALLEN, JUSTIN 

ROMANO, 

Defendants. 

---------------------------------------------------------------------- 

APPEARING FOR APPELLANT: DONNA NEWMAN, Law Offices of Donna R. 

Newman, PA, New York, New York. 

APPEARING FOR APPELLEE: EDWARD IMPERATORE, Assistant United 

States Attorney (Patrick Egan, Diane Gujarati, 

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. 
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Appeal from final judgment of the United States District Court for the Southern 

District of New York (John F. Keenan, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment entered on September 16, 2016, is VACATED and 

REMANDED IN PART as to forfeiture, and AFFIRMED in all other respects. 

Defendant Dionysius Fiumano was convicted after a jury trial of substantive and 

conspiratorial wire fraud, see 18 U.S.C. §§ 1343, 1349, and 2, in connection with an 

advance-fee mortgage modification scheme involving thousands of victims, many of 

whom lost their homes as a result of the fraud. On appeal, Fiumano challenges only his 

sentence, which ordered concurrent 16-year prison terms as well as forfeiture and 

restitution, each in the amount of $11,975,404.13. We assume the parties’ familiarity 

with the facts and record of prior proceedings, which we reference only as necessary to 

explain our decision to affirm in part and vacate in part. 

1. The Prison Terms 

Fiumano argues that his total 16-year prison sentence is procedurally and 

substantively unreasonable. We first address his procedural challenge, which asserts 

Guidelines calculation error. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 

2008) (en banc). 

a. Procedural Error 

(1) Sophisticated Means Enhancement 

Because Fiumano first challenges the application of a sophisticated means 

enhancement on appeal, see U.S.S.G. § 2B1.1(b)(10)(C), we review only for plain error, 
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see United States v. Hertular, 562 F.3d 433, 449 (2d Cir. 2009), which is not evident 

here. The district court’s purported failure to explain its application of this 

enhancement, see 18 U.S.C. § 3553(c), warrants no remand because the court expressly 

adopted the findings in Fiumano’s Pre-Sentence Report (“PSR”), which provided 

satisfactory factual support, see United States v. Espinoza, 514 F.3d 209, 212 (2d Cir. 

2008). Indeed, the Guidelines’ own example of sophisticated means—a telemarketing 

scheme in which the main office and soliciting operations are in separate jurisdictions, 

see U.S.S.G. § 2B1.1 cmt. n.9(B)—precisely mirrors the conduct here. 

Fiumano cannot urge otherwise by arguing that he was a mere “salesman.” 

Appellant Br. at 28. Although this court has held that sophisticated means is an offense 

characteristic, not a characteristic of an individual defendant, see United States v. Lewis, 

93 F.3d 1075, 1084 (2d Cir. 1996), for purposes of this decision we assume arguendo

that the Sentencing Commission’s 2015 amendment of the sophisticated means 

enhancement requires us to look to Fiumano’s own conduct in assessing the 

appropriateness of this enhancement, see U.S.S.G. § 2B1.1(b)(10)(C) (requiring 

defendant himself to have “intentionally engaged in or caused conduct constituting 

sophisticated means”). When we do so, we have no difficulty concluding that there was 

sufficient evidence of Fiumano’s intentional conduct that the district court’s application 

of the enhancement was not plain error. Specifically, Fiumano’s orchestration of, and 

participation in, the “company flips,” used by the schemers to evade victims and law 

enforcement, demonstrates his personal engagement in conduct constituting sophisticated 

means. 
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(2) Abuse-of-Private-Trust Enhancement 

As for Fiumano’s challenge to the application of an abuse-of-private-trust 

enhancement, see U.S.S.G. § 3B1.3, we need not resolve the parties’ dispute as to 

whether our review is also limited to plain error because Fiumano fails to show any error 

at all. The district court’s adoption of the PSR obviates the need to remand for an 

explanation of reasons for this enhancement, and Fiumano’s substantive challenge to the 

enhancement is meritless. He argues that because he did not deal directly with victims, 

they did not view him as personally holding a position of trust. But Fiumano does 

not—and cannot—dispute trial evidence showing that telemarketers, acting at his 

direction and using scripts he prepared, induced victims by falsely telling them that they 

would be represented by a lawyer. See U.S.S.G. § 3B1.3 cmt. n.3 (applying 

enhancement to false representations of trust); United States v. Walker, 191 F.3d 326, 338 

(2d Cir. 1999) (recognizing attorney to hold position of trust with regard to clients). 

Indeed, several victims testified that they understood from these representations that they 

had retained an attorney. Fiumano is responsible for confederate actions in a jointly 

undertaken scheme, see U.S.S.G. § 1B1.3(a)(1)(B) (stating that in case of “jointly 

undertaken criminal activity,” defendant is responsible for all acts and omissions of 

others “reasonably foreseeable” to have been within scope and in furtherance of that 

jointly undertaken activity), most particularly when taken at his direction, see generally

18 U.S.C. § 2. Accordingly, we identify no error in application of the § 3B1.3 

enhancement. 
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(3) Role Enhancement 

Fiumano challenges application of the four-level enhancement for organizers and 

leaders of criminal activities involving five or more participants, see U.S.S.G. § 3B1.1(a), 

arguing that only a two-level role enhancement was warranted, see id. § 3B1.1(c), 

particularly given the purported greater roles of other co-conspirators. The argument 

merits little discussion. Fiumano does not dispute that the scheme involved five or more 

participants, and the Guidelines themselves make clear that more than one person can 

qualify as a leader or organizer of a criminal scheme. See id. § 3B1.1 cmt. n.4; United 

States v. Wisniewski, 121 F.3d 54, 58 (2d Cir. 1997). The record easily admits a 

preponderance finding that Fiumano was an organizer or leader of the scheme. See 

United States v. Salazar, 489 F.3d 555, 557–58 (2d Cir. 2007). Evidence showed that 

Fiumano did more than manage or supervise the telemarketers and sales managers 

essential to the scheme. He recruited a significant number of such participants and 

exercised considerable discretion in instructing them on the misrepresentations they were 

to make to victims, conduct indicative of a leader or organizer. See U.S.S.G. § 3B1.1 

cmt. n.4; United States v. Chavez, 549 F.3d 119, 136 (2d Cir. 2008) (holding four-level 

enhancement appropriate where defendant instructed lower level co-conspirator on 

dilution of narcotics); United States v. Parker, 903 F.2d 91, 104 (2d Cir. 1990) (holding 

four-level enhancement appropriate where defendant recruited accomplices). Further, 

he earned more than a half-million dollars from the scheme, which, even if not the 

highest amount earned by any participant—a point disputed by the parties—was “a larger 
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share of the fruits of the crime” than that of most other participants. U.S.S.G. § 3B1.1 

cmt. n.4. Accordingly, a four-level role enhancement was warranted. 

(4) Loss Amount 

Fiumano argues that the district court committed procedural error in applying a 

20-level enhancement to his Guidelines calculation based on the PSR’s loss report of 

$11,975,404.13. See U.S.S.G. § 2B1.1(b)(1)(K) (pertaining to losses exceeding $9.5 

million up to $25 million). He contends that only an 18-level enhancement was 

warranted. See id. § 2B1.1(b)(1)(J) (pertaining to losses exceeding $3.5 million up to 

$9.5 million).1

 The point merits little discussion because this loss argument was made 

to the district court, which plainly chose not to resolve it because the precise loss figure 

was “immaterial” to its decision to vary substantially below either Guidelines range to 

impose a total 16-year prison term. JA 316, 324. Where the district court makes such 

an explicit and unambiguous declaration that a particular enhancement did not affect its 

ultimate sentence, we need not decide a procedural challenge to the enhancement’s 

application. See United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (“Where we 

identify procedural error in a sentence, but the record indicates clearly that the district 

court would have imposed the same sentence in any event, the error may be deemed 

harmless, avoiding the need to vacate the sentence and to remand the case for 

resentencing.” (internal quotation marks omitted)); accord United States v. Feldman, 647 

 

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 The higher enhancement, considered together with all other Guidelines factors, resulted 

in a recommended term of life imprisonment, which was capped by the statutory 

maximum prison sentence of 40 years. The lower enhancement would yield a 

Guidelines sentencing range of 324–405 months’ imprisonment. See U.S.S.G. ch. 5, pt. 

A. 
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F.3d 450, 459 (2d Cir. 2011). Fiumano’s arguments urging us not to take the district 

court at its word are unconvincing. The record amply manifests the district court’s 

careful consideration of all relevant factors—mitigating as well as aggravating—in 

exercising its ultimate discretion to sentence Fiumano not within any Guidelines range, 

but to the 16-year term of incarceration that it thought best served the sentencing goals of 

18 U.S.C. § 3553(a). See Gall v. United States, 552 U.S. 38, 50 (2007) (stating that 

sentencing court “may not presume that the Guidelines range is reasonable” but must 

itself determine sentence that serves interests stated in 18 U.S.C. § 3553(a)); United 

States v. Jones, 531 F.3d 163, 182 (2d Cir. 2008). 

b. Substantive Unreasonableness 

Fiumano argues that his 16-year prison sentence is substantively unreasonable. 

We will identify substantive unreasonableness only in those “exceptional cases,” United 

States v. Cavera, 550 F.3d at 189, where the sentence is “so ‘shockingly high, shockingly 

low, or otherwise unsupportable as a matter of law’ that allowing [it] to stand would 

‘damage the administration of justice,’” United States v. Broxmeyer, 699 F.3d 265, 289 

(2d Cir. 2012) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). A 

Guidelines sentence will rarely raise such concerns; a below-Guidelines sentence even 

less so. See United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011).2

 This is not 

an exceptional case warranting a different conclusion. 

 

2

 Fiumano’s 16-year (192-month) sentence is significantly below both the capped 

40-year Guidelines range derived from the application of a 20-level loss enhancement 

and the 324- to 405-month range derived from the application of an 18-level 

enhancement. 
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As the district court reasonably observed, Fiumano played a leadership role over a 

number of years in “a callous and heartless mortgage modification scheme” in which 

thousands of victims were defrauded by misrepresentations crafted by Fiumano and 

conveyed by scores of people whom he supervised. JA 314–15. Many of the victims 

lost their homes as a result of the fraud, suffering “enormous” emotional as well as 

financial harm. Id. at 318. Meanwhile, Fiumano earned more than a half-million 

dollars from his crime. On this record, and mindful of the “due deference” owed to the 

sentencing judge’s exercise of discretion, United States v. Cavera, 550 F.3d at 190, we 

cannot conclude that a total prison sentence of 16 years is so shocking as to be 

substantively unreasonable. 

No different conclusion is compelled by lesser sentences imposed in other fraud 

cases or on certain of Fiumano’s co-defendants. While a district court is statutorily 

required to consider “the need to avoid unwarranted sentence disparities among 

defendants with similar records who have been found guilty of similar conduct,” 18 

U.S.C. § 3553(a)(6), the weight to give this, or any other § 3553(a) factor, is a matter 

committed to the district court’s discretion and generally unreviewable on appeal. See

Gall v. United States, 552 U.S. at 56; United States v. Cavera, 550 F.3d at 191 (stating 

that appellate courts “do not consider what weight we would ourselves have given a 

particular factor,” but decide only whether factor “can bear the weight assigned” by 

district court). Such deference is particularly warranted here, where Fiumano has failed 

to show that his crime is clearly analogous to those involved in the comparator cases he 

cites, whether in terms of his particular leadership role, the scope of the fraud, and the 
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particularly serious harm—emotional as well as financial—inflicted on thousands of 

victims. See United States v. Coppola, 671 F.3d 220, 254 (2d Cir. 2012) (rejecting 

disparity challenge where there was no showing that defendants were “similarly 

situated”). Much less can Fiumano complain of disparity with his co-defendants, see

United States v. Johnson, 567 F.3d 40, 54 (2d Cir. 2009) (stating that district court 

“may—but is not required to—consider sentencing disparity among co-defendants under 

18 U.S.C. § 3553(a)(6)”), whose guilty pleas and cooperation with the government make 

them not similarly situated to Fiumano, see United States v. Fernandez, 443 F.3d 19, 30–

33 (2d Cir. 2006) (holding that disparity among non-similarly situated co-defendants 

manifests no § 3553(a)(6) error). 

Accordingly, because Fiumano’s prison sentence is neither procedurally nor 

substantively unreasonable, his argument for vacatur and remand fails. 

2. Forfeiture

The parties agree that the forfeiture order imposing joint and several liability on 

Fiumano in the amount of $11,975,404.13, representing the entire amount of the 

scheme’s proceeds, must be vacated in light of Honeycutt v. United States, 137 S. Ct. 

1626, 1630 (2017) (holding that defendant cannot be held “jointly and severally liable for 

property that his co-conspirator derived from the crime but that the defendant himself did 

not acquire”).3

 But while the government asks us to direct the district court, on remand, 

 

3

 In light of the government’s concession, we need not here decide whether Honeycutt’s 

ruling, made with respect to a forfeiture order under 21 U.S.C. § 853(a)(1), applies 

equally in all respects to forfeiture orders under other statutes, including 18 U.S.C. 

§ 981(a)(1)(C), applicable here. 
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to order forfeiture in the reduced amount of $593,605.88, constituting the amount 

Fiumano was paid during his employment with PMG, Fiumano contends that the district 

court should be ordered to conduct a new hearing as to the proper forfeiture amount, but 

with a cap of $593,605.88. He does not dispute that he was paid this amount, or that all 

PMG revenues came from victims of the fraud scheme. Rather, he argues that a hearing 

is necessary because certain victims received legitimate document preparation services, 

such that Fiumano’s forfeiture should be reduced by the amount these victims paid to 

PMG.4

 

Fiumano’s argument is defeated by trial testimony showing that 

document-preparation victims were falsely told that an “underwriter” had reviewed the 

victims’ loan files and that they would likely qualify for loan modifications, when 

Fiumano and his co-conspirators knew that no such review had occurred and that these 

victims were poor candidates for loan modification. Because document-preparation 

victims thus parted with their $595 based on lies concocted by Fiumano and his 

confederates, these victims most assuredly did not receive the services for which they 

bargained. See United States v. Binday, 804 F.3d 558, 579 (2d Cir. 2015) (holding that 

victim sustains loss from fraud if defendant intends his misrepresentation to induce 

victim to enter transaction without relevant facts necessary to make informed economic 

 

4

 PMG purported to offer its victims two types of services: full modification service for a 

fee of $3,000, and document preparation service for a fee of $595. As to the former, 

victims were told that an attorney would submit loan modification documents to and 

negotiate with the bank on the victim’s behalf. As to the latter, victims were told PMG 

would prepare an application that the victim would submit. 
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decision). Accordingly, because the only conclusion admitted by the evidence is that all

of Fiumano’s compensation “constituted or derived from proceeds traceable to [the 

fraud],” it is subject to forfeiture. 18 U.S.C. § 981(a)(1)(C). 

3. Restitution 

The Mandatory Victims Restitution Act (“MVRA”) requires a district court to 

order a defendant to make restitution to identifiable victims of the crime of conviction 

who have suffered a pecuniary loss. 18 U.S.C. § 3663A(a)(1), (c)(1)(B). Such 

restitution can be ordered jointly and severally. See United States v. Zangari, 677 F.3d 

86, 96–97 (2d Cir. 2012). Fiumano nevertheless urges us to vacate the $11,975,404.13 

restitution order in his case, arguing that it (1) holds him responsible for losses occurring 

before he joined the charged conspiracy, (2) includes payments made by 

document-preparation victims who sustained no loss, and (3) fails to identify victims and 

their losses individually. Because Fiumano did not object to the restitution order before 

the district court, we review only for plain error, which is not evident here. See United 

States v. Boyd, 222 F.3d 47, 49 (2d Cir. 2000). 

Fiumano’s first argument is defeated by the very case on which he relies: United 

States v. Bengis, 783 F.3d 407 (2d Cir. 2015). Bengis reaffirmed the principle that if a 

defendant who joins a conspiracy “knew or reasonably should have known about some or 

all of the conspiracy’s past [criminal conduct], his restitution order should encompass” 

past loss amounts. Id. at 413. The trial record here shows that, prior to joining PMG, 

Fiumano worked for co-conspirator Pedram Abghari at Clear Blue, where they and others 

ran a nearly identical fraud scheme to the one they would conduct at PMG. Indeed, it 
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was when Abghari left Clear Blue to open his new fraudulent enterprise, PMG, that he 

selected Fiumano to run Clear Blue’s sales staff. Thus, when Abghari recruited 

Fiumano to join the PMG fraud scheme, Fiumano knew or reasonably should have 

known that fraudulent activity had transpired there prior to his arrival. On these facts, 

we identify no plain error in the district court’s decision to order Fiumano to make 

restitution for the entire length of the charged conspiracy. 

Fiumano’s second challenge warrants no different conclusion because, as we have 

already held, trial evidence compels the conclusion that fraudulent representations 

induced document-preparation victims to part with their money, and thus they are entitled 

to restitution. We need not address Fiumano’s arguments as to the availability of data 

about such victims in PMG’s file storage system, because nothing in his arguments 

suggests that the data would alter the fact of misrepresentation.5

 

 Fiumano argues that the $11,975,404.13 restitution order represents losses 

suffered by all fraud victims, who number in the thousands. He submits that, at 

sentencing, the government identified only 100 victims of the fraud, thereby violating 

precedent prohibiting lump-sum restitution orders. See United States v. Zakhary, 357 

F.3d 186, 190 (2d Cir. 2004) (“A lump sum restitution order entered without any 

identification of victims and their actual losses is not permissible.”); United States v. 

Catoggio, 326 F.3d 323, 328 (2d Cir. 2003) (holding “that restitution can only be 

imposed to the extent that the victims of a crime are actually identified”). At 

 

5

 For this reason, Fiumano’s motion to expand the record on appeal to include an 

affidavit concerning the availability of this data, see Dkt. No. 40, is hereby DENIED. 

 
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sentencing, the district court stated that it had “received victim impact statements from 

over 100 victims.” JA 314. But the restitution order itself states that “the names, 

addresses, and specific amounts owed to the victims are set forth in the Schedule of 

Victims and Restitution attached hereto.” SPA 8. Thus, while the 100 victims who 

submitted victim impact statements may be among those included on the Schedule of 

Victims and Restitution, this does not mean that only 100 victims are there identified.6

 

Having failed to produce the Schedule of Victims and Restitution as part of the appellate 

record, Fiumano can hardly show clear, much less plain, error in the district court’s 

restitution order. 

We have considered Fiumano’s remaining arguments and conclude that they are 

without merit. Accordingly, we VACATE only so much of the judgment of conviction 

as orders forfeiture, and we REMAND to the district court for the limited purpose of 

ordering forfeiture in the amount of $593,605.88. In all other respects, the judgment is 

AFFIRMED. 

FOR THE COURT: 

CATHERINE O’HAGAN WOLFE, Clerk of Court 

 

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 Indeed, at oral argument, the government produced the Schedule of Victims and 

Restitution, which in fact listed, by name and address, thousands of victims of the scheme 

and the amount of their losses, which more than justified the restitution amount 

determined by the district court, and counsel for Fiumano acknowledged the accuracy of 

the document presented by the government. Fiumano’s argument thus appears to be 

entirely inaccurate.