#### UNITED STATES of America, Appellee, v. Cheyne MAZZA, Defendant-Appellant, Joseph Cassetti, James Canavan, Sterling Mazza, Philip Negron, and Gary Eichensehr, Defendants.

No. 11-3714-cr.

United States Court of Appeals, Second Circuit.

Nov. 15, 2012.

*10Michael S. Hillis, New Haven, CT, for Appellant.

David X. Sullivan, Sandra S. Glover, for David B. Fein, United States Attorneys Office for the District of Connecticut, New Haven, CT.

PRESENT: DENNIS JACOBS, Chief Judge, REENA RAGGI, and JON O. NEWMAN, Circuit Judges.

*SUMMARY ORDER*

Cheyne Mazza challenges his sentence, arguing that the district court erred in applying the United States Federal Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) by [1] refusing to grant a reduction for acceptance of responsibility and [2] counting a prior Connecticut conviction in determining criminal history category notwithstanding that Connecticut afterward decriminalized the conduct giving rise to that conviction. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

This Court reviews the procedural reasonableness of a district court’s sentence for abuse of discretion. *United States v. Gavera,*550 F.3d 180, 187 (2d Cir.2008). “A district court commits procedural error where it fails to calculate the Guidelines range ..., makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.” *Id.*at 190 (citations omitted).

1. In refusing a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 (2009), the district court did not abuse its discretion by considering the untimeliness of the plea. *See*U.S.S.G. § 3E1.1 cmt. 1(h) (“In determining whether a defendant qualifies under subsection (a), appropriate considerations include ... the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.”); *id.*cmt. 6 (“The timeliness of the defendant’s acceptance of responsibility is a consideration *under both subsections.”*(emphasis added)). Defendant’s reliance on *United States v. Kumar,*617 F.3d 612, 636 (2d Cir.2010), is unpersuasive because in this case, the timeliness of Defendant’s plea was not the only factor upon which the district court based its decision to deny the reduction. Moreover, Defendant pled guilty on the morning of jury selection. *See id.*at 637 (emphasizing that Kumar did not plead “ ‘on the morning of trial’ ”) (quoting *United States v. Teyer, 322*F.Supp.2d 359, 376 (S.D.N.Y.2004)).

2. The district court did not base its denial of a reduction on Defendant’s request for a *Fatico*hearing, as Defendant argues. The district court refused the reduction in part on Defendant’s request for a *Fatico*hearing because the request was “totally and completely frivolous.” (Sentencing Hr’g Tr. 50, Aug. 29, 2011.) Relatedly, a defendant’s refusal to admit to his *11role as leader of the conspiracy (the subject of the *Fatico*hearing) is in itself a proper basis upon which the district court denied Defendant a reduction for acceptance of responsibility. *See United States v. Zhuang,*270 F.3d 107, 110 (2d Cir.2001) (denying reduction where defendant asserted that he “was paid to do the job, [and] that he was merely a ‘middle person’ ”).

3. Defendant was not denied a reduction for acceptance of responsibility for refusing to admit to uncharged conduct. He was denied the reduction for refusing to admit to his role in the conspiracy, which, as *Zhuang*holds, was proper. In any event, Defendant’s reliance on *United States v. Oliveras,*905 F.2d 623, 629-30 (2d Cir.1990), is unavailing, as the court in *Oliveras*relied on language in section 3E1.1 that has since been changed.

4. The district court properly calculated Defendant’s criminal history category. One of Defendant’s prior convictions was for possession of a small amount of marijuana, conduct that the Connecticut legislature subsequently decriminalized. *See*Conn. Gen.Stat. § 21a-279a (2011); *id.*§ 53a-24(a) (“Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.”); *id.*§ 53a-27(b) & (c). However, a state’s classification of conduct as a “violation” or a “crime” is irrelevant for the purpose of calculating a defendant’s prior criminal history under U.S.S.G. § 4Al.l(c). As the Application Notes to section 4A1.1 explain: “To minimize problems with imperfect measures of past crime seriousness, criminal history categories are based on the maximum term imposed in previous sentences rather than on other measures, such as whether the conviction was designated a felony or misdemeanor.” U.S.S.G. § 4Al.l(c) cmt. background. Exceptions for certain minor infractions (such as traffic violations and loitering) are listed in section 4A1.2(c), but drug possession is not among them. *See United States v. Jenkins,*989 F.2d 979, 979 (8th Cir.1993) (holding that the district court correctly applied criminal history points to defendant’s prior state marijuana convictions that were “merely infractions under Nebraska law”). Moreover, a state’s reclassification that occurs *after*a conviction has become final does not apply retroactively. The Guidelines’ concern with “[Repeated criminal behavior [as] an indicator of a limited likelihood of successful rehabilitation” suggests that the only relevant consideration is whether the defendant has engaged in criminal behavior in the past. U.S.S.G. Ch. 4, pt. A, intro, cmt. Defendant’s behavior was criminal at the time he engaged in it, and as such, is an “indicator of a limited likelihood of successful rehabilitation.” *Id.; see generally McNeill v. United States,*— U.S. -, 131 S.Ct. 2218, 180 L.Ed.2d 35 (2011) (holding that state’s subsequent lowering of punishment for crime of prior conviction did not render conviction inapplicable to Federal Armed Career Criminal Act).

Finding no merit in Mazza’s remaining arguments, we hereby AFFIRM the judgment of the district court.