     13-0834-cr
     United States of America v. Cliffe Bodden

                                   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.

 1       At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
 3   the 28th day of January, two thousand fourteen
 4
 5   Present: ROBERT A. KATZMANN,
 6                        Chief Judge,
 7            RICHARD C. WESLEY,
 8            RAYMOND J. LOHIER, JR..,
 9                        Circuit Judges.
10   ____________________________________________________________
11
12   UNITED STATES OF AMERICA,
13
14                                Appellee,
15
16
17                                - v. -                         No. 13-0834-cr
18
19   CLIFFE R. BODDEN, Sealed Defendant 2,
20
21                                Defendant-Appellant,
22
23   S. GEORGE MILTER, Sealed Defendant 1,
24
25                        Defendant.*
26   ____________________________________________________________
27
28


              *
                The Clerk of the Court is respectfully directed to amend the official caption as set forth
     above.
 1   For Defendant-Appellant:          Susan G. Kellman (Sarah Kunstler, on the brief), Law Office of
 2                                     Susan G. Kellman, Brooklyn, NY.
 3
 4   For Appellee:                     Carrie Heather Cohen, Michael A. Levy, and Justin Anderson,
 5                                     Assistant United States Attorneys, for Preet Bharara, United
 6                                     States Attorney for the Southern District of New York, New
 7                                     York, NY.
 8
 9
10   ________________________________________________
11
12          Appeal from the United States District Court for the Southern District of New York
13   (Forrest, J.).
14
15          ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

16   and DECREED that the judgment of the district court be and hereby is AFFIRMED.

17          Defendant-Appellant Cliffe Bodden appeals from a February 28, 2013 sentence imposed

18   by the United States District Court for the Southern District of New York (Forrest, J.) following

19   a plea of guilty to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349

20   and one count of wire fraud in violation of 18 U.S.C. § 1343. The district court sentenced

21   Bodden principally to 37 months on each count, to run consecutively, for a total of 74 months of

22   incarceration. Bodden appeals, arguing that the district court committed both procedural and

23   substantive error in imposing a sentence of 74 months of incarceration. We assume the parties’

24   familiarity with the underlying facts, procedural history, and issues on appeal.

25          Bodden first contends that the district court committed procedural error in imposing the

26   sentences on his counts of conviction to run consecutively rather than concurrently, contrary to

27   the grouping provision in § 3D1.2 of the United States Sentencing Guidelines (“Guidelines” or

28   “U.S.S.G.”), and argues that, in imposing his sentence, the district court misunderstood the



                                                      2
 1   Guidelines calculation. Bodden’s interpretation contradicts the record, which shows that the

 2   district court correctly understood the way that his sentence would be calculated under the

 3   Guidelines. The sentencing transcript makes evident that the district court intended to deviate

 4   from the Guidelines when it ordered that the sentences run consecutively. Moreover, the district

 5   court’s oral ruling, as well as the Statement of Reasons, “adequately explain . . . [the] deviation

 6   from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Therefore, Bodden

 7   has not demonstrated that the district court committed procedural error when it calculated his

 8   sentence pursuant to the Guidelines.

 9          Bodden also argues that the district court committed substantive error because it

10   unintentionally failed to properly group his counts of conviction, imposed a longer sentence than

11   the typical nationwide and Circuit-wide sentences for similar charges, and failed to adequately

12   justify the length of the sentence. Both arguments are meritless. First, as discussed above, the

13   record shows that the district court consciously and explicitly imposed an above-Guidelines

14   sentence. Second, while reasons that the district court provides in its § 3553(a) analysis must

15   “justify the extent of the variance” from the Guidelines, Gall, 552 U.S. at 51, sentencing is

16   ultimately an individualized inquiry.

17          The district court explained that its sentencing decision was justified by the duration of

18   Bodden’s offense; the callous nature in which Bodden solicited additional money from his

19   victims after they tried to get their money back; and how the fraud scheme ruined the lives of

20   families who trusted Bodden with their life savings. In view of its explanation, we disagree with

21   Bodden’s contention that the district court abused its discretion.



                                                      3
 1          Finally, as explained above, the district court’s explanation about why it imposed an

 2   above-Guidelines sentence is well-reasoned and supported by the record. See United States v.

 3   Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). For these reasons, we find that the district

 4   court’s reasons for imposing an above-guidelines sentence were well-articulated, justified and

 5   purposeful. For the reasons stated herein, the judgment imposed by the district court is

 6   AFFIRMED.

 7                                                    FOR THE COURT:
 8                                                    CATHERINE O’HAGAN WOLFE, CLERK
 9
10
11
12
13
14
15
16




                                                     4
