16-2139-cr United States of America v. Galan 

## 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION
A SUMMARY ORDER @ ). A PARTY CITING TO 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 Fo ley Square, in the City of New York, on the 13 th day of March, two thousand eighteen.
PRESENT: DEBRA ANN LIVINGSTON, SUSAN L. CARNEY, Circuit Judges, EDWARD R. KORMAN, District Judge. *

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 16-2139-cr
E DUARDO G ALAN , Defendant-Appellant.

_____________________________________ For Appellee: T IFFANY H. L EE (Joseph J. Karaszewski, on the brief ), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York. * Judge Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.2 For Defendant-Appellant: S TEVEN Y. Y UROWITZ , Newman & Greenberg LLP, New York, New York. Appeal from an amended judgment of the Unit ed States District Court for the Western District of New York (Geraci, C.J. ) entered August 7, 2017. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the amended judgment of the district court is AFFIRMED

. Defendant-Appellant Eduardo Galan appeals from an August 7, 2017 amended judgment of the United States District Court for the Western District of New York (Geraci, C.J. ), sentencing Galan to a below-Guidelines sentence of 36 mont hs’ imprisonment and, central to Galan’s appeal, ordering Galan to pay $1,102,951.06 in restituti on, exceeding the plea agreement’s restitution figure of $1,098,567.26 (albeit by less than $4,400) and Probation’s restitution calculation of $1,090,978.52 (by less than $12,000). Galan asserts that th e district court erred in ordering – and the government breached its plea agreement by requesting – $1,102,951.06 in restitution because that figure exceeded the plea agreement’s and pr esentence report’s restitution amounts. Galan thus seeks vacatur of the amended judgment in its entirety, including the amount of restitution, and resentencing before a new judge. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
I. Background In Galan’s plea agreement with the government, he admitted that “from in or about January 2008 to in or about March 2013, he de frauded a total of approximately 18 investors out of a total of approximately $821,912.” J.A. 14. Galan “f urther acknowledge[d] that, from 2005 to the present, at least 38 investors ha ve invested money in [Galan’s bus iness], and that such investors3 are presently owed at le ast $1,098,567.26. [Galan] agree[d] to pay restitution to such investors [] in the total amount of $1,098,567.26.” Id. To explain the differences in the loss and restitution amounts, the government noted that Galan’s cr iminal conduct “resulted in at least $821,000 in
criminal loss to his investors and that number . . . is a conservative number.” J.A. 61. That approximately $821,000 figure “is an actual hard cash figure that th ese people are out[,]” whereas “[t]he restitution amount is higher than the loss am ount in this case for the simple reason that Mr. Galan had many investors.” Id. Unlike the investors reflected in the loss amount, the investors reflected in the restitution amount “had invest ed with Mr. Galan, but [the government] can’t determine whether or not that investment was fra udulently induced or was a legitimate investment that just simply went bad.” J.A. 61–62. In its presentence report, Probation determined that th e amount of restitution was $1,090,978.52, which was slightly less (approximately $8,000) than the plea agreement’s $1,098,567.26 figure. Galan’s counsel at sentencing di d not challenge Probation’s figure, nor did the government. However, and this is the crux of the appeal, at sentencing the government sought to add approximately $12,000 to the restitution fi gure by also including losses incurred by an investor, Shirley Malloy-Van Cheri. Malloy-Van Cheri passed away and her son, Roger Van Cheri, testified at Galan’s sentencing. The gove rnment claimed – and Galan disputes – that it learned of Malloy-Van Cheri’s lo sses the week of sentencing. For their part, Galan and Galan’s counsel below did not dispute th at there was an investment by the Van Cheri family, but Galan tentatively indicated some potentia l uncertainty about th e precise amount of the debt, claiming that he “cannot completely agree [about the size of the debt] until [he] see[s] the papers, but the amount, it shouldn’t be that big.” J.A. 58. The district court proposed “add[ing] it to the restitution at4 this point subject to, obviously, Mr. Galan providing information to Probation that some of that has been paid or taken care of.” J.A. 58–59. Ga lan’s counsel replied, “T hat’s fair,” and agreed with the district court that the proposal “ma[ d]e sense.” J.A. 59. Galan never provided any information to Probation indicating that this figu re should be reduced. The district court thus added the approximately $12,000 losses incurred by the Van Cheri family to the restitution amount, for a total restitution figure of $1,102,951.06. 1 As noted above, $1,102,951.06 exceeded (by less than $4,400) the restitut ion figure agreed to in th e plea agreement of $1,098,567.26 and
Probation’s determination of $1,090,978.52 (by less than $12,000).
II. Discussion As an initial matter, to the extent that Galan suggests that ther e was anything improper about Roger Van Cheri speaking at Galan’s sentenci ng, we reject this argument. “The procedures used at sentencing are within the discretion of the district court so long as the defendant is given an adequate opportunity to present his position as to matters in dispute.” United States v. Maurer , 226 F.3d 150, 151 (2d Cir. 2000) (per curiam). At se ntencing, “[t]he Guide lines expressly provide for consideration ‘without limitation, [of] any information concerning th e background, character and conduct of the defendant, unless otherwise prohibited by law.’” United States v. Silkowski , 32 F.3d 682, 687–88 (2d Cir. 1994) (quoting U.S. S.G. § 1B1.4). The above authority demonstrates that the district court did not err in allowing Van Cheri’s te stimony at sentencing.

1 Both parties agree that the rest itution order in the original judg ment (not at i ssue on appeal) was defective because it did not detail the specific victims and the amounts they were owed. The district court corrected the error under Federal Rule of Criminal Procedure 36 and invited the parties to submit a written submission if they wished to be heard. Neither party objected – indeed, Galan was again silent as to any errors in the re stitution order – and the district court docketed an amended judgment correcti ng the clerical error.5 Galan did not dispute that he operated a Ponzi sc heme, and it was well within the district court’s sentencing discretion to hear Van Cheri’s testimony about his late mother’s investment losses with Galan as “background, character and conduc t” information under U.S.S.G. § 1B1.4

. Turning to the restitution order, Galan did no t object to the amount of restitution below, and “[o]ur review is therefor e limited to plain error.” United States v. Boyd , 222 F.3d 47, 49 (2d Cir. 2000) (per curiam) (citing Fed. R. Crim. P. 52(b); United States v. Helmsley , 941 F.2d 71, 98 (2d Cir. 1991)); see also United States v. Caban , 173 F.3d 89, 92 (2d Cir. 1999) (same); United States v. Taylor , 92 F.3d 1313, 1335 (2d Cir. 1996) (same); United States v. Keppler , 2 F.3d 21, 23 (2d Cir. 1993) (same). “Under th e plain error standard, there must be (1) error, (2) that is plain, and (3) that affects the defe ndant’s substantial rights.” United States v. Carter , 489 F.3d 528, 537 (2d Cir. 2007) (citing Johnson v. United States , 520 U.S. 461, 466–67 (1997)). If all three requirements are present, “we may exercise our di scretion to notice the error,” but only if “the error seriously affects the fairne ss, integrity, or pub lic reputation of judi cial proceedings.” Id. Here, the district court pr oposed adding the approximately $12,000 in losses incurred by the Van Cheri family to the restitution am ount “subject to, obviousl y, Mr. Galan providing information to Probation that some of that has been paid or taken car e of.” J.A. 58–59. Critically, Galan’s counsel conceded “[t]hat’s fair ,” and affirmatively approved of the district court’s statement that the proposal “ma[d]e sense.” J.A. 59. Furthermore, Galan never followed up on the district court’s offer and failed to provide any information to Probation or the district court indicating that this figure should be reduced. When the di strict court proposed unrelated modifications to the original judgment under Fede ral Rule of Criminal Procedure 36, moreover, the district court gave Galan a third opportunity to obj ect when it invited the parties to submit a6 written submission if they wished to be heard. For the third time, Galan again said nothing regarding any potential e rrors in the restitution order. In these circumstances, where Galan has repeatedly consented to the distri ct court’s restitution figure, we discern no e rror in the district court’s calculations, much less an error that was plain, and that a ffects Galan’s substantial rights. Nor can we conclude that Galan’s belated, de minimis challenge to the restitution award constitutes an error “seriously affect[ing] th e fairness, integrity, or public reput ation of judicial proceedings,” as required under the plain error standard to vacate the amended judgment and remand for resentencing . Carter , 489 F.3d at 537; see also United States v. Gjidija , 369 F. App’x 282, 285 (2d Cir. 2010) (summary order) (“We decline, how ever, to equate an error that amounts to less than one one-hundredth of the tota l restitution award with ‘plain e rror’ in the calcu lation of that award as a whole.”). We have considered all of Galan’s remaining ar guments and find them to be without merit. Accordingly, we AFFIRM the amended judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court