     14-3400, 14-4585
     United States v. Basciano

                          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
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of May, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-3400,
16                                                                       14-4585
17       VINCENT BASCIANO, JR.,
18                Defendant-Appellant,
19
20       SALVATORE LARCA, AKA SEALED DEFENDANT
21       1, AKA SAL LARCA, MATTHEW STROCK,
22       THOMAS DONAHUE, AKA TRE, AKA ROY
23       DWYER, ANTHONY ZOCCOLILLO, JR.,
24       GEORGE KOKENYEI, JOSEPH BASCIANO,
25       ELON VALENTINE, AKA HIT, DOMINICK
26       DELUCCIA, KENNETH OWEN, STEPHEN
27       BASCIANO, MITCH ENGLESON,


                                                  1
 1            Defendants.*
 2   - - - - - - - - - - - - - - - - - - - -X
 3
 4   FOR APPELLANT:             PAUL CAMARENA, North & Sedgwick,
 5                              Chicago, Illinois.
 6
 7   FOR APPELLEE:              REBECCA MERMELSTEIN (with Adam
 8                              S. Hickey on the brief),
 9                              Assistant United States
10                              Attorneys, for Preet Bharara,
11                              United States Attorney for the
12                              Southern District of New York,
13                              New York, New York.
14
15        Appeal from a judgment of the United States District
16   Court for the Southern District of New York (Sullivan, J.).
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the judgment of the district court be
20   AFFIRMED.
21
22        Vincent Basciano, Jr., appeals from a judgment of
23   conviction and sentence of the United States District Court
24   for the Southern District of New York (Sullivan, J.). We
25   assume the parties’ familiarity with the underlying facts,
26   the procedural history, and the issues presented for review.
27
28        Basciano contends that the district court erred in
29   calculating forfeiture based on his marijuana sales. If the
30   defendant preserves an objection, this Court reviews a
31   district court’s factual findings regarding forfeiture for
32   clear error and its legal determinations, if any, de novo.
33   United States v. George, 779 F.3d 113, 122 (2d Cir. 2015).
34   Since Basciano did not object to the district court’s
35   methodology, we review the forfeiture determination only for
36   plain error. United States v. Roberts, 660 F.3d 149, 167
37   (2d Cir. 2011).
38
39        The Government bears the burden of proving the amount
40   of proceeds by a preponderance of the evidence. United
41   States v. Capoccia, 503 F.3d 103, 116 & n.18 (2d Cir. 2007).
42   “The calculation of forfeiture amounts is not an exact

         *
              The Clerk of Court is directed to amend the
     official caption in this case to conform to the listing of
     the parties above.
                                  2
 1   science,” United States v. Treacy, 639 F.3d 32, 48 (2d Cir.
 2   2011), so “district courts may use general points of
 3   reference as a starting point for a forfeiture calculation
 4   and make reasonable extrapolations supported by a
 5   preponderance of the evidence,” Roberts, 660 F.3d at 166
 6   (internal quotation marks omitted). Thus, in a narcotics
 7   case, the government may sustain its burden by “proving the
 8   quantity of [narcotics] dealt . . . multiplied by the price
 9   it could have commanded.” Id. at 165.
10
11        Basciano’s plea agreement stipulated to his sale of at
12   least 100 kilograms (or 220 pounds) of marijuana. The
13   district court proposed to use that quantity, and no party
14   objected. The district court then multiplied that quantity
15   by the retail price of $9,700 per pound. Recognizing the
16   result was only an estimate, the district court rounded down
17   by $134,000 and ordered forfeiture of $2,000,000.
18
19        This calculation was “a reasonable estimate of the
20   loss, given the available information.” Treacy, 639 F.3d at
21   48 (internal quotation marks omitted). Multiplication of
22   amount by price is an approach expressly permitted in our
23   prior precedent. See Roberts, 660 F.3d 165. Because the
24   district court’s estimate was reasonable, we affirm the
25   amount of the forfeiture order.
26
27        For the foregoing reasons, and finding no merit in the
28   defendant’s other arguments, we hereby AFFIRM the judgment
29   of the district court.
30
31                              FOR THE COURT:
32                              CATHERINE O’HAGAN WOLFE, CLERK
33




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