12-3880-cr
United States v. Lacorte


                                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.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 27th day of
September, two thousand thirteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         DENNIS JACOBS,
                     Circuit Judge,
         KEVIN THOMAS DUFFY,
                     District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

              Appellee,

                           v.                           No. 12-3880-cr

JOHN CIPOLLA, a/k/a Sealed Defendant 1, FRANK
BOEHME, a/k/a Sealed Defendant 2, ANTHONY
MASCUZZIO, a/k/a Sealed Defendant 3, JONATHAN
MASCUZZIO, a/k/a Sealed Defendant 4,

        Defendants,
FRANCIS LACORTE, a/k/a Sealed Defendant 5,


         *
        The Honorable Kevin Thomas Duffy, of the United States District Court for the
Southern District of New York, sitting by designation.
         Defendant-Appellant.
________________________________________________

For Appellee:                     Peter M. Skinner, Michael A. Levy, Assistant United States
                                  Attorneys, for Preet Bharara, United States Attorney for the
                                  Southern District of New York, New York, NY

For Defendant-Appellant:          Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A.,
                                  Harwinton, CT


       Appeal from the United States District Court for the Southern District of New York
(Pauley, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Francis Lacorte appeals from a September 7, 2012, judgment of

conviction entered by the United States District Court for the Southern District of New York

(Pauley, J.). Lacorte pled guilty to one count of misprision of a felony, 18 U.S.C. § 4, and the

district court sentenced him to time served and ordered him to make $153,725 in restitution. On

appeal, Lacorte challenges the restitution payment schedule set by the district court. We

presume the parties’ familiarity with the remaining facts and procedural history of this case.

       Lacorte argues that the restitution order is flawed in two respects. First, he contends that

the district court erred in requiring him to pay 50% of any of his UNICOR earnings while in the

custody of the federal Bureau of Prisons (“BOP”) towards restitution because the court failed to

consider his ability to pay and because it had no authority to order that restitution payments be

made from UNICOR earnings. This argument is plainly without merit. The district court

acknowledged the fact that Lacorte would be “spending much of the rest of [his] life” in prison

on unrelated state charges, which shows that the court was aware of Lacorte’s limited financial

                                                 2
resources. J. App’x 35; see also United States v. Walker, 353 F.3d 130, 134–35 (2d Cir. 2003)

(district court need not make any particular statement on the record to demonstrate that it has

considered defendant’s ability to pay restitution). We have explained that a restitution payment

schedule may properly require a defendant to contribute a percentage of income earned while

incarcerated. See United States v. Kinlock, 174 F.3d 297, 301 (2d Cir. 1999).

       Second, Lacorte argues that the portion of the order requiring him to pay $25 per quarter

toward restitution from income earned in a BOP non-UNICOR work program should be stricken

because the district court did not impose this condition during the oral pronouncement of

sentence. Again, Lacorte’s argument is meritless. Although a “direct conflict between an

unambiguous oral pronouncement of sentence and the written judgment” must be resolved in

favor of the oral pronouncement, the written judgment may properly resolve “genuine

ambiguities in the oral sentence.” United States v. Truscello, 168 F.3d 61, 62–63 (2d Cir. 1999)

(internal quotation marks and emphasis omitted). Here, the written judgment of conviction

merely clarified Lacorte’s payment schedule in the event that he earned income from a non-

UNICOR BOP work program.

       We have considered all of the defendant’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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