08 - 01 04 - cr

U ni t ed St ates v. M arti nucci UN ITED STA TES C OU RT OF AP P EA LS F OR THE SE CO ND CI RC UI T August Term, 2008 (Submitt ed: Novembe r 11, 2008 Dec ided: April 8, 2009)

Docke t No. 08-0104-c r

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X UNI TED STATES OF AMERI CA, 1 Appellee , 2 3 -v.- 4 5 A M E R IC O A

. M A R T IN U C C I, 6 7 Defendant- Appellant

. 8 9 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 10 11 Be fore : L EVAL , POOL ER, and PARKER, Circuit Judges

. 12 13 The de fenda nt Americo A . Martinucc i appea ls from the sentenc e imp o s ed on him by the 14 Uni t ed S t at es District Court for the Nor thern District of N ew Yor k (Thomas J. McAvoy , Judge ) 1 5 fo l l o w i n gh i s p l e a o f g u i l ty t o a o n e - c o un t

i n d i c t m e n tc h ar g i n g h i mw i thp r o d u c i n g c hil d 1 6 po r

n o g r a p h y , in v io la ti o no f 1 8 U

. S. C. § 2 2 5 1 ( a )

. M arti nu c c i a s s e rts o na p p e a l t h a t h is s entenc e 17 of 300 months imprisonment wa s unrea sonably sever e and that the court e rre d in consideringhear say 18 information in deter mining the appropr iate sentenc e. The Court of Appe als aff irms the sentenc e. 19 20 G L E N N T

. S U D D A B Y , U n i t e d S t a t e s A t t o r n e y, 21 Norther n District of New Yo rk (Miroslav L ovric, 22 B re nd a K. Sann e s, As sis tant Unit e d St a te s A tto rn e y s, 23 of counsel) Sy rac use, NY, f

or Appellee

. 24 25 TERENCE L . KI NDL ON, Kindlon and Shanks, P.C., 26 Albany , NY, for Defendant- Appellant

.-2- 1 Pe r C ur iam: 2 The de fenda nt Americo A . Martinucc i appea ls from the sentenc e imposed on him by the 3 United States District Court for the N orthern D istrict of NewYork (T homas J . McAvoy , Judge ) 4 fo llo wi nghis ple a of g uil ty to a on e -c ount i nd ic tme nt c ha rg inghim wi th p ro du c ingc hil d 5 pornog raphy , in violation of 18 U.S.C. § 2251(a). Martinucc i asserts on appe al that his sentence 6 of 300 months imprisonment was unrea sonably sever e and that the court e rre d in considering 7 hear say

information in deter

mining the a

ppropriate sentenc e. 8 Martinucc i’s offe nse involved his sexual abuse of a ten y ear old gir l The evide nce 9 showed the f

ollowing. The victim’s family wer e ver y close fr iends of Mar

tinucci, such that he 10 had bee n at their home when they broug ht their newbor

n daug hter, the vic tim, home from the 11 hospital. W hen the g irl was ten year s old and they wer e alone toge ther, Mar tinucci had the 12 y oungvic timwatc h v ide ota pe s o f a du lt p or

no g ra phy and be sti a lity . H e la

te r t oo k h e r t o a

c a bin 13 behind his home wher e he ha d her r ub his penis and then had se x ual interc ourse with her . The 14 next day

he took her

to an offic e in a pizzeria which he ran, where he had se t up a video ca mera . 15 He a g ain had se x with her, a nd rec orded the act on videota pe. He then drove her to a nother 16 residenc e and ha d sex wit h her a g ain. A fe w day s later Ma rtinucci ha d her w atch the vide otape 17 he had ma de. On a nother oc casion, whe n the victim was at his re sidence for a party , he ca lled 18 out her name and e x hibited his penis to her. 19 Three y ear s later, the vic tim tol d her mother , and then the police , about Martinucc i’s 20 offe nses. Under

police surve illance she place d a telephone call to Martinucc i (which wa s 21 rec orded) and ac costed him with what he ha d done to her , expressing he r fe ar that he would do 22 the same to his own g randda ug hter. In response to her inquiry about the videotape , he told her-3- 1 that he had longag o burned it. “Tha t’s all Ig ot to do, keep it, so somebody will find it. Are y ou 2 out of y our mind or what? ” In explanation of his acts, he said, “ What Idid, what we did . . . wa s 3 beca

use I wanted you to know ever y thing a bout sex . Every

thing, so you wouldn’t g et hurt. 4 That’s the r eason why Itaug ht y ou ever

y g oddam thing. O r most ever y thing.” He then 5 questioned her

about whethe r she ha d told any one, ca utioning, “It’s our business, it’s nobody 6 e l s e ’ s b u s i n e s s . Y o uun d e r s t an d ?” 7 Whe n th e Ne w Y or k St ate Pol ic e int e rv ie we d h im, he a dmi tte d th a t he ha d th e vic tim 8 touch his penis with her ha nd, but denied havinghad interc ourse with her , and denie d having 9 e ve r t ou c he d a

nyon e e lse ina

pp ro pr iate ly . Wh e n inte rv ie we d b y the Pr ob a tio n O ff

ic e a ft e r h is 10 g uilty

plea, he denied that he had sexual contac t with the victim and denied makinga videotape

. 11 He ins ist e d th at he ha d p le a de d guil ty on ly to m akin g a

te le ph on e c a ll. 12 At

the se nte nc ingpr oc e e din g , M art inu c c i a sse rt e d th a t he ha d ma de a g uil ty ple a on ly 13 be c a

us e he wa s und e r a

lot of pr e ssu re , a nd c la ime d h e ha d p le d o nly to a ph on e c a ll a

nd no t to 14 the cha

rg e ag ainst him. He ag ain denied ha ving ha d sex wit h the g irl and soug ht to impeach her , 15 asking , “Why

did it take her thre e y ear s to come for war d if it was the truth, if it was the truth that 16 she wa s rape d, that she wa s abused, se x ually abused? ” He added, “ Inever touched that g irl . . . I 17 did nothing but g ood in my life, all my

life.” 18 The g overnme nt provided the c ourt with evidenc e of Ma rtinucci’s a

buse of other

y oung 19 g irls. This included an sworn de position of a woman who in 1985 or 1986, when she w as twelve 20 y ear s old, had worke d in Martinucci’ s piz zeria. She stated that many times, when she we nt to the 21 ba se me nt f

or su pp lie s, Mart inu c c i ha d p ull e d o ut h is p e nis and ha d h e r r ub it. He on c e tr ie d to 22 have int e rc ours e wi th h e r, but st op pe d whe n h e he ard he r m oth e r c a lli nghe r. Th e c ourt a lso-4- 1 considere d depositions of three othe r young women, who testified to Ma rtinucci’s similar sexual 2 abuse of

them when they

wer e twelve or thirteen year s old. The cour t also hear d evidenc e of 3 se ri ou s e mot ion a l ha rm su ff e re d b y the vic tim

. 4 Martinucc i’s offe nse leve l under the United States SentencingGuidelines wa s 33, which 5 indicated a

sentenc e ra

ng e of 135- 168 months. His offense of conviction, howeve r, re quired a 6 mandatory

minimum sentenc e of 180 months. 18 U.S.C. § 2251(e). The g overnme nt’s 7 sentenc ing me morandum ar g ued that under the sentenc ing f

actor s presc ribed by

18 U.S.C. § 8 35 53 (a ) t

he c ourt sh ou ld s e nte nc e Mart inu c c i mo re se ve re ly . A s n ote d, the c ourt de te rm ine d to 9 sentenc e above the Guidelines ra ng e and the mandatory

minimum . I t imposed a term of 10 imprisonment of 300 months. I n explanation, the court cited the g reat harm the de fenda nt had 11 do ne to t

he vic tim , a s w e ll a s to oth e r c hil d v ic tim s o f h is a bu se , th e ne e d f

or se ve re punis hme nt, 12 the importance of dete rringothers fr om committi ng simil ar of fense s, and the ne ed to protec t 13 other potential victims from the de fenda nt. Finally , the cour

t cited the def

endant’ s complete lac k 14 of re morse, as e vidence d by his denial at the sente ncingproce edingof the ve ry conduct he had 15 admitted at his g uilty plea. 16 Discussion 17 We find no merit in the contentions Martinucc i raises on a ppeal. F or the fir st tim e on 18 appea l, he contends the court should not have c onsidered he arsa y in determininghis sentence

. 19 B e c a

us e he did

no t pr e se rv e thi s o bje c tio n in the pr oc e e din g s in

the dis tr ic t c ourt , h is c la im i s 20 revie wed unde r the plain error standard. Un ite d S

tates v . V illafu e rte , 502 F.3d 204, 207- 08 (2d 21 Cir . 2 00 7) . In a

ny e ve nt, re g ard le ss o f t

he sta nd a rd fo r a pp e llate re vie w, the re is n o me ri t to his 22 c la im. I t ha s lo ngbe e n e sta bli sh e d th a t a

dis tr ic t c ourt

may c on sid e r h e ars ay

e vid e nc e in-5- 1 deter

mining the a

ppropriate sentenc e if the e vidence is of sufficie nt reliability

. See U nited States 2 v. Martinez , 413 F.3d 239, 242 ( 2d Cir. 2005). Ther e wa s no err or in the cour t’s consideration of 3 the depositions of Martinucc i’s other victims. There was no re ason to doubt the reliability of the 4 de po ne nts , a

nd Mart inu c c i di d n ot a sk

to b e a llo we d to c ro ss- e xami ne the m. 5 No r i s th e re me ri t to Mart inu c c i’ s c on te nti on that th e c ourt

a c te d unr e a so na

bly in 6 depar

ting upwa rd under U.S.S.G. § 5K2.8 and imposing a term of imprisonment of 300 months. 7 The district cour

t conscientiously

revie wed the pe rtinent sentenc ing f actor s specifie d by

§3553(a) 8 and conc luded, consider ing the seriousness of the offe nse and the g reat harm inflicted on the 9 victim, the defe ndant’s re cidivism, and his lack of re morse, that the ne ed for punishment, for 10 deter

renc e of othe rs, and f

or protec tion of society

justified the leng thy

imprisonment term. The 11 court did not exceed its sentenc ing disc retion. See Ga ll v . U nite d S tates, 128 S. Ct . 586, 595 12 (2 00 7) ; Un ite d S tates v . M ini stro- Tap ia , 470 F.3d 137, 141 ( 2d Cir. 2006). In our view, the 13 sentenc e wa s altog ether appropr iate. 14 Conclusion 15 The judg ment of convic tion is affirmed. 16 17 18