1 14-3162-cr United States v. Fama



### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T 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 Co urthouse, 40 Foley Square, in the City of New York, on the 22 nd day of January, two thousand sixteen.
Present: C HESTER J. S TRAUB , D EBRA A NN L IVINGSTON , D ENNY C HIN , Circuit Judges

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_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 14-3162-cr
G ARY F AMA , Defendant-Appellant , J ACK M ANNINO , Defendant

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_____________________________________ For Appellee: T IANA A. D EMAS and Emily Berger, Assistant United States Attorneys, for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, N.Y.2 For Defendant-Appellant: E LIZABETH E. M ACEDONIO , Elizabeth E. Macedonio P.C., New York, N.Y. Matthew B. Keller, Keller Law Firm, P.C., New York, N.Y.
UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED in part, and REMANDED for further proceedings cons istent with this order. Defendant-Appellant Gary Fama appeals fo llowing his jury trial and judgment of conviction in the United States District Court for the Eastern District of New York (Kuntz, J. ), entered on August 20, 2014. The criminal case concerns the December 29, 2011, robbery of a Capital One Bank in Brooklyn in which two i ndividuals, one armed, stole $5,658. Fama, along with his co-conspirator, Jack Ma nnino, was charged in a Supersed ing Indictment, filed June 26, 2012, with armed bank robbery, in violati on of 18 U.S.C. §§ 2113(a), 2113(d), 2, and 3551, et
seq. , and for carrying and using a firearm during a cr ime of violence, in vi olation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2, and 3551, et seq . Following a jury trial, Fama was convicted on both counts. The district court sentenced Fama to a total of 420 months of imprisonment and five years of supervised release, and it ordered hi m to pay $5,658 in restitu tion and $200 in special

assessments. Fama raises two issues on appeal. First, he challenges the distri ct court’s ruling on a pretrial evidentiary motion, whic h allowed the Government to introduce evidence of a prior uncharged act. Second, he challenges his sent ence, which was substantially above the advisory U.S. Sentencing Guidelines range , as both procedurally and s ubstantively unreasonable. We assume the parties’ familiarity with the underlying facts, proce dural history of the case, and issues on appeal, and we describe them here only as necessary to explain our decision.3 I. Evidence of a Prior Uncharged Act Fama challenges the district c ourt’s grant of the Government ’s pretrial motion to admit evidence relating to a prior uncharged act. The evidence at issue is the testimony of Mannino, who became a cooperating witness a nd testified against Fama at tria l. Mannino testified that he and Fama committed the bank robbery, and he pr ovided details about the events preceding, during, and following the robbery. Specifically, Mannino recounted that on the day of the robbery, while he and Fama were in his car d eciding whether to rob a bank, Fama suggested the Capital One Bank because it did not “have a [bulletproof glass] window,” and because “he robbed that bank previously some years back and it was successf ul. He got caught but he got away with it.” Trial Tr. 448-49. Mannino further testified that Fama al so explained how the robbery should proceed: “He told me as we go into the bank, he was going to hold everyone down with the gun and I was going to jump over the counter. And he says, [a]s I’m running in they’re probably going to lock th e drawers, the teller drawers, an d for me to just ask them to open them.” Trial Tr. 449. As Mannino testifie d, the two then proceede d to rob the Capital One Bank in that manner. The Government filed a motion seeking, in rele vant part, to admit Fama’s statement to Mannino that he had robbed the same physical ba nk in the past “and had ‘gotten away with it.’” 1 A25. Fama opposed the motion partly on the basi s that evidence of a prior uncharged bank robbery by Fama constituted impermissible propen sity evidence. The dist rict court granted the Government’s motion, reasoning that “the statem ent explain[ed] why Fama would have chosen

1 Fama was a suspect in the investigation of the Ja nuary 18, 2000, robbery of a Greenpoint Savings Bank branch that was located at the site of the presen t-day Capital One Bank. The execution of a search warrant at Fama’s home on January 26, 2000, in c onnection with that investigation, resulted in the recovery of firearms that Fama, as a convicted fel on, could not lawfully possess. Fama was charged and convicted with the unlawful possession of these weapons, but was never charged with the robbery of the Greenpoint Savings Bank. While incarcerated for th e firearms offense, Fama met Mannino, who at the time was serving a twelve-year sentence for bank robbery.4 to rob the Capital One Bank as opposed to any ot her bank.” A55. It demonstrated his “motive and intent to rob this particular bank” and not a nother bank in the vicinity. A55-56. To that end, the statement showed Fama’s “knowledge of the physical layout of the bank, including entrances and exits.” A55. Last, the court also determined that the statement “tend[ed] to show opportunity in that he previously robb ed the bank and believed he could do it again.” A56. On appeal, Fama contends that the distri ct court abused its discretion by admitting Mannino’s testimony into evidence. Fama argues that the testimony was inadmissible for a purpose other than to show a pr opensity to commit the charged bank robbery, that the probative weight of the testimony did not outweigh the dange r of unfair prejudice, and that the district court’s limiting instruction did not abate the risk that the jury would use the testimony for an improper purpose. The Government argues, inter alia , that this Court can affirm on an independent ground: that the testimony was admi ssible because “‘it arose out of the same transaction or series of transacti ons as the charged offense, [and] is inextricably intertwined with the evidence regarding the charged offense, or . . . necessary to complete the story of the crime on trial.’” Gov’t Br. 35 (quoting United States v. Alvarez , 541 Fed. App’x 80, 85 (2d Cir. 2013) (summary order)). This Circuit reviews a district court’s evidentiary rulings with deference and reverses only if it finds an abuse of discretion. United States v. Cuti , 720 F.3d 453, 457 (2d Cir. 2013). A district court abuses its discre tion if its evidentiary rulings are “based on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or if its decision cannot be located within the range of pe rmissible decisions.” Id. We have explained that evidence of uncharged criminal conduct, if it is “‘inex tricably intertwined with the evidence regarding the charged5 offense,’” is not evidence of “other crimes, wrongs, or acts” under Rule 404(b). United States v. Quinones , 511 F.3d 289, 309 (2d Cir. 2007) (quoting United States v. Towne , 870 F.2d 880, 886 (2d Cir. 1989)). Rather, if it “‘comple te[s] the story of the crime on trial,’” id. (quoting
Towne , 870 F.2d at 886), then the evid ence of the uncharged act is properly “tre ated as ‘part of the very act charged,’ or, at le ast, as proof of that act,” id. (quoting United States v. Concepcion , 983 F.2d 369, 392 (2d Cir. 1992)). We may affirm on any ground so long as it is clearly supported in the record. Grieve v.
Tamerin , 269 F.3d 149, 154 (2d Cir. 2001). In this case, the record is clear that Mannino’s testimony is “inextricably intertwined” with th e evidence supporting the Government’s case for the charged offenses. Mannino’s testimony about Fama’s comments to him (which was the only evidence related to Fama’s pa rticipation in the earlier bank robbery that the jury heard) explained the robbers’ choice of which bank to rob. Fama made the comments, in fact, immediately before the commission of the crim e while the two were planning the robbery. Mannino’s testimony also shed light on why the two men went to the Capital One Bank in particular—because Fama knew that it did not ha ve bulletproof glass te ller windows, based on the previous successful robber y—and how they came to agree on how to commit the upcoming robbery (in which Fama was to hold everyone down with the gun, and Mannino would jump over the counter). Indeed, drawing on Fama’s past experience, Fama and Ma nnino proceeded to commit the robbery at the Capital One Bank in preci sely the manner on which they had agreed. In such circumstances, we conclude that the di strict court did not ab use its discretion in admitting the testimony into evidence. The brief testimony “‘complete[d] the story of the crime on trial.’” Quinones , 511 F.3d at 309 (quoting Towne , 870 F.2d at 886). And the district court properly instructed that the evidence could not be used “as proof that the defendant has a6 criminal personality or bad character.” G.A. 95. Thus, the district court did not err in permitting the jury to consider it.
II. Fama’s Sentence Fama next argues that the above-Guidelin es sentence was both procedurally and substantively unreasonable. We review the re asonableness of a senten ce under a “deferential abuse-of-discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007). When considering the procedural reasonableness of a sentence, we “take a deferential approach and refrain from imposing any rigorous requirement of specific articula tion by the sentencing judge.” United States v. Fleming , 397 F.3d 95, 99 (2d Cir. 2005). We will, however, set aside a sentence as procedurally unreasonable if the district court “‘fails to calculate (or improperly calculates) the Sentencing Guidelines range, trea ts the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, se lects a sentence based on cl early erroneous facts, or fails adequately to explain the chosen sentence.’” United States v. Chu , 714 F.3d 742, 746 (2d Cir. 2013) (quoting United States v. Robinson , 702 F.3d 22, 38 (2d Cir. 2012)). Fama challenges the procedural reasonableness of his sentence, inter alia , because the district court did not adequately explain its reasons for imposi ng a 420-month-long sentence of imprisonment—a sentence substantially above th e advisory Guidelines range of 147 to 162 months’ imprisonment. A district court is requi red, under 18 U.S.C. § 3553( c), to “state in open court the reasons for its imposition of [a] particular sentence.” When a di strict court sentences outside the Guidelines range, moreover, it must al so state, both in open court and in a written order, the specific reason for imposing a senten ce different from that prescribed by the Guidelines. See United States v. Sindima , 488 F.3d 81, 85 (2d Cir. 2007). Critically, when a district court deviates from an a dvisory Guidelines range, it “‘must consider the extent of the7 deviation and ensure that the ju stification is sufficiently compel ling to support the degree of the variance.’” United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall , 552 U.S. at 50). An appellate court, in turn, “may ‘take the degree of va riance into account and consider the extent of a deviation from the Guidelines.’” Id. at 190 (quoting Gall , 552 U.S. at 47). A significant variance from the Guidelines “‘should be supported by a more significant justification than a minor one.’” Id. at 193 (quoting Gall , 552 U.S. at 50)

. For a major variance, the district court bears a “higher descriptive obligation.” United States v. Cassesse , 685 F.3d 186, 193 (2d Cir. 2012). Because Fama did not lodge an objection on this basis at sentencing, we review only for plain error. Id. at 188. We conclude, however, that the district court plainl y did not meet its higher descriptive obligation in th e circumstances here. There is no question that the district court sentenced significantly outside the Guidelin es range: even assuming a sentence at the top of the Guidelines, the district court varied upw ards from the advisory 162 months’ incarceration to the 420 months’ incar ceration that it actually imposed. Upon the Government’s prompting at sentencing, the district court provi ded some oral explanation for this variance (though it did not ultimately do so in the Statement of Reasons beyond checking the boxes that list the § 3553(a) factors). But the district court simply recite d Fama’s criminal history, as provided in the Presentence Report (“PSR”), without explaining why the Guidelines range itself did not already adequately account for what the district cour t characterized—not inap tly—as “a lifetime of crime.” A94. Beyond Fama’s criminal history, mo reover, the district court stated that it had “seen no shred of evidence of remorse,” A94, and only briefly noted the statement about the uncharged bank robbery, without explaining a ny findings, A93-94. We conclude that the explanation was inadequate in light of the magnitude of the variance.8 It is not improper for a district court to rely on uncharged conduct in fashioning a sentence for convicted conduct if it makes appropriate factual fi ndings by a preponderance of the evidence. See United States v. Aldeen , 792 F.3d 247, 254 (2d Cir. 2015). But there is a lack of clarity about how, or to what extent, the district court relied on the uncharged bank robbery. On the one hand, the district court stated “that we don’t punish people in this country for crimes with which they were not charged and crimes fo r which they were not convicted by a jury of their peers beyond a reasonable doubt.” A91. On the other hand, the district court then went on to reference the Mannino testimony without making any explicit findings of fact or explaining for what purpose it considered it. A93-94 (“[T ]here is obviously . . . the testimony of Mannino in this case with respect to the prior bank robbery at Capital One, and the fact th at Mr. Mannino and the defendant conspired to rob the bank when they got out of jail with the statements, according to Mr. Mannino, that Mr. Fama had said he had . . . [‘]gotten away[’] with the previous robbery and the physical attachments to evidence from that robbery that was never charged nor was he ever convicted of.”). From that statement, the extent to which the district court relied on the nature of the first robbery, as detailed in the PSR, is similarly unclear. Given that Fama objected to this portion of the PSR, the district court apparently overrul ed the objection but did not explain its basis for doing so. We have explained that when a district cour t’s statements at sentencing “provide[] ‘an insufficient basis . . . for us to determine why the district court did what it did,’ that is an error that affects a defendant’s ‘substantial rights.’” United States v. Ware , 577 F.3d 442, 452 (2d Cir. 2009) (second alteration in original) (quoting United States v. Lewis , 424 F.3d 239, 247 n.5 (2d Cir. 2005)). While a brief explanation such as the present one may have sufficed for a more limited upward variance from the Gu idelines, we conclude that it does not afford an adequate9 basis for a reviewing court to understand “why the c onsiderations used as justifications for the sentence are ‘sufficiently compelling []or present to the degree necessary to support the sentence imposed.’” Sindima , 488 F.3d at 86 (alteration in original) (quoting United States v. Rattoballi , 452 F.3d 127, 137 (2d Cir. 2006)). In such circumstan ces, the district court plainly erred, and it is appropriate for us to seek additional explanati on “‘to support the degree of the variance’” from the Guidelines range. Cavera , 550 F.3d at 189 (quoting Gall , 552 U.S. at 50). The district court was also re quired to state its reasons “with specificity” in the written judgment of conviction as required by § 3553(c)(2). In its non-public statement of reasons, the district court checked the box fo r a sentence “above the advisory guidelines ra nge,” and then checked five boxes in Part VI(C), but left blank Part VI(D), which asked for an explanation of “the facts justifying a sentence outside the advisory guideline s system.” This statutory obligation should be remedied on remand. See Aldeen , 792 F.3d at 254-55. Accordingly, we remand with instructions to vacate Fama’s sentence and to conduct resentencing proceedings. Because we are remanding the case for resentencing, we do not consider here Fama’s additional sentencing argume nts. In the interest of judicial economy, however, this panel will retain juri sdiction over any subsequent appeal. See United States v. Jacobson , 15 F.3d 19, 22 (2d Cir. 1994).
III. Conclusion We have considered Fama’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM Fama’s conviction, and REMAND for further proceedings consistent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk