18-2306-cr
United States v. Cascio


                                 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 United States Courthouse, 40 Foley Square, in the City of New York,
on the 27th day of June, two thousand nineteen.

PRESENT:             JOSÉ A. CABRANES,
                     RAYMOND J. LOHIER, JR.,
                     CHRISTOPHER F. DRONEY,
                                  Circuit Judges.



UNITED STATES OF AMERICA,

                            Appellee,                      18-2306-cr

                            v.

THOMAS CASCIO,

                            Defendant-Appellant.



FOR APPELLEE:                                           Monica J. Richards, Assistant United
                                                        States Attorney, for James P. Kennedy, Jr.,
                                                        United States Attorney, Western District
                                                        of New York, Buffalo, NY.
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FOR DEFENDANT-APPELLANT:                                     Arza Feldman, Feldman & Feldman,
                                                             Uniondale, NY.

        Appeal from a July 26, 2018 judgment of the United States District Court for the Western
District of New York (Lawrence J. Vilardo, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Defendant-Appellant Thomas Cascio (“Cascio”) was convicted, following a jury trial, of
bank robbery and entering a bank to commit a larceny. 18 U.S.C. § 2113(a). He was sentenced
principally to concurrent 180-month (or 15-year) terms of imprisonment. His advisory term of
imprisonment under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 210
to 240 months. Cascio appeals both the procedural and substantive reasonableness of his sentence.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.

        “We review the procedural and substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018). “A district
court commits procedural error where it fails to calculate (or improperly calculates) the Sentencing
Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [18 U.S.C.] §
3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the
chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012).

          Our review of a sentence for substantive reasonableness is “particularly deferential.” United
States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence as substantively
unreasonable only if it is “so shockingly high, shockingly low, or otherwise unsupportable as a
matter of law that allowing [it] to stand would damage the administration of justice.” Id. (internal
quotation marks omitted).

                                     I. Procedural Reasonableness

         Cascio first argues that his sentence was procedurally unreasonable because the District
Court improperly imposed a prison term to promote Cascio’s rehabilitation. Cascio next argues that
the District Court procedurally erred by applying a two-level enhancement pursuant to U.S.S.G.
§ 2B3.1(b)(2)(F). Cascio failed to object to these alleged procedural errors at the time of sentencing;
accordingly, we review for plain error. United States v. Villafuerte, 502 F.3d 204, 207–08 (2d Cir. 2007);
Fed. R. Crim P. 52(b). “Plain error review requires a defendant to demonstrate that (1) there was
error, (2) the error was plain, (3) the error prejudicially affected his substantial rights, and (4) the

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error seriously affected the fairness, integrity or public reputation of judicial proceedings.” United
States v. Burden, 860 F.3d 45, 53 (2d Cir. 2017).

        A district court may not impose or lengthen a prison term in order to promote a criminal
defendant’s rehabilitation. Tapia v. United States, 564 U.S. 319, 321 (2011). By contrast, a district court
“commits no error by discussing the opportunities for rehabilitation within prison or the benefits of
specific treatment or training programs.” Id. at 334. Here, there is no indication that the District
Court imposed or otherwise lengthened the defendant’s sentence in order to promote his
rehabilitation. To the contrary, the District Court mentioned Cascio’s drug addiction as the most
compelling mitigating factor at sentencing and the principal reason why the District Court was
choosing to impose a sentence significantly below the advisory Guidelines range. Further, there was
no error—much less plain error—in the District Court’s discussion of the treatment opportunities in
Cascio’s recommended facility.

        Cascio also argues that the District Court procedurally erred by applying a two-level
enhancement pursuant to § 2B3.1(b)(2)(F) of the Guidelines. Section 2B3.1(b)(2)(F) provides for a
two-level increase to a defendant’s base offense level “if a threat of death was made” in the course
of robbery. Even assuming arguendo that it was plain error for the District Court to apply this
enhancement, this error did not prejudicially affect Cascio’s substantial rights. In fact, the
enhancement had no effect on Cascio’s offense level, since his designation as a “career offender”
required that his offense level be 32, which was higher than the offense level calculated using the
§ 2B3.1(b)(2)(F) enhancement. See U.S.S.G. § 4B1.1(b)(3) (providing that “if the offense level for a
career offender from the table in this subsection is greater than the offense level otherwise
applicable, the offense level from the table in this subsection shall apply”).

                                     II. Substantive Reasonableness

         Cascio argues that his below-Guidelines 180-month sentence was substantively unreasonable
and “draconian” in light of the fact that he is a drug addict who robbed a bank of only $306. At
sentencing, the District Court expressly disclaimed that it was imposing “a 15-year sentence for
stealing $300.” App. 80. Rather, the District Court explained that the offense was serious “not
because of the amount stolen, but because of the nature and circumstances of the crime, the fear
that it instilled on that poor bank teller” and Cascio’s “track record,” including his five prior bank
robbery convictions. Id. Finally, we note that at sentencing, Cascio’s counsel suggested that a
sentence of 180 months’ imprisonment would be sufficient, but not greater than necessary, to
achieve the purposes of sentencing. Id. at 73 (“[I]f you gave him 75 percent, that would be 180
months. That’s a lot of time, but it’s a lot less than 240 months. On the spectrum of criminals, does
he deserve that statutory maximum of 240? Or maybe 75 percent is enough.”). In sum, we conclude
that a 15-year sentence was not substantively unreasonable under the circumstances of this case.



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                                       CONCLUSION

       We have reviewed all of the arguments raised by Cascio on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the July 26, 2018 judgment of the District
Court.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk of Court




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