     14-3357-cr(L)
     United States v. Sampson
                                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 TO 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
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 6th day of April, two thousand sixteen.

 4            PRESENT: ROBERT A. KATZMANN,
 5                                     Chief Judge,
 6                             RAYMOND J. LOHIER, JR.,
 7                             CHRISTOPHER F. DRONEY,
 8                                     Circuit Judges.
 9            ------------------------------------------------------------------
10            UNITED STATES OF AMERICA,
11                                             Appellee,
12                                    v.                                           Nos. 14-3357-cr(L),
13                                                                                      14-3361-cr(CON),
14            RODNEY ZECHARIAH SAMPSON, JOHN                                            14-4584-cr(CON)
15            GILBERT JUNCAL, JAMES ANDERSON
16            CAMPBELL, JR.,
17                                             Defendants-Appellants.*
18            ------------------------------------------------------------------
19
20            FOR APPELLANT
21            SAMPSON:                         RICHARD HALEY, Haley Weinblatt & Calcagni, LLP,
22                                             Islandia, NY.
23

     *
         The Clerk of Court is directed to amend the caption of this case as set forth above.

                                                           1
 1          FOR APPELLANT
 2          JUNCAL:                     JOHN S. WALLENSTEIN, Garden City, NY.
 3
 4          FOR APPELLANT
 5          CAMPBELL:                   Richard A. Miller, Miller & Skubik, LLP, Commack,
 6                                      NY.
 7
 8          FOR APPELLEE:               CHRISTOPHER C. CAFFARONE, Assistant United States
 9                                      Attorney (Amy Busa, Assistant United States Attorney,
10                                      on the brief) for Robert L. Capers, United States
11                                      Attorney for the Eastern District of New York,
12                                      Brooklyn, NY.
13
14          Appeal from judgments of the United States District Court for the Eastern District
15   of New York (Sandra J. Feuerstein, Judge).
16          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
17   AND DECREED that the judgments of the District Court are AFFIRMED.
18          Defendants-appellants John Juncal, James Campbell, and Rodney Sampson appeal
19   from judgments resentencing them in connection with their earlier convictions for
20   conspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and
21   1349. The Defendants’ initial sentences were previously vacated by this Court due to
22   procedural error. See United States v. Corsey, 723 F.3d 366 (2d Cir. 2013). On remand,
23   the District Court sentenced Juncal, Campbell, and Sampson to terms of imprisonment
24   lasting twenty, sixteen, and fifteen years, respectively. Juncal challenges his sentence as
25   both procedurally and substantively unreasonable. Campbell and Sampson challenge
26   their sentences as substantively unreasonable only. We assume the parties’ familiarity
27   with the facts and record of the prior proceedings, to which we refer only as necessary to
28   explain our decision to affirm.
29          1. Procedural Unreasonableness

30          “We review a sentence for procedural and substantive reasonableness under a
31   deferential abuse-of-discretion standard.” United States v. Thavaraja, 740 F.3d 253, 258


                                                  2
 1   (2d Cir. 2014) (quotation marks omitted). “Procedural reasonableness focuses on whether
 2   a district court ‘fails to calculate the [Sentencing] Guidelines range, makes a mistake in its
 3   Guidelines calculation, treats the Guidelines as mandatory, does not consider the § 3553(a)
 4   factors, or rests its sentence on a clearly erroneous finding of fact.’” United States v.
 5   Matta, 777 F.3d 116, 124 (2d Cir. 2015) (alterations omitted) (quoting United States v.
 6   Cavera, 550 F.3d 180, 190 (2d Cir. 2008)). Juncal argues that his sentence was
 7   procedurally flawed because the District Court (1) refused to consider his arguments, (2)
 8   failed to provide reasons for imposing a 20-year sentence, and (3) did not order an updated
 9   presentence investigation report (“PSR”) before resentencing him.
10          We reject each of these arguments. The District Court reviewed Juncal’s
11   resentencing memorandum and considered Juncal’s argument that his age and
12   post-conviction rehabilitation counseled in favor of a shorter sentence. In rejecting those
13   arguments, the District Court adequately explained its reasoning: it based Juncal’s sentence
14   on his continued efforts to deceive the Probation Department following his conviction, his
15   long history of fraudulent conduct, his role as the mastermind of the fraudulent scheme for
16   which the Defendants were convicted, and reports by prison authorities that he was a
17   “problem inmate.” Juncal App’x 52-54. Nor are we persuaded that the District Court
18   erred in not ordering an updated PSR. First, Juncal never formally requested one, and
19   second, district courts are not required to obtain an updated PSR upon resentencing when,
20   as in this case, “a hearing on resentencing was held at which the parties had a full
21   opportunity to be heard and to supplement the PSR as needed.” United States v. Conhaim,
22   160 F.3d 893, 896 (2d Cir. 1998). Here, Juncal had the opportunity to supplement the
23   initial PSR in his resentencing memorandum describing for the District Court his
24   post-conviction disciplinary record and his medical condition. We therefore conclude
25   that the District Court did not procedurally err in resentencing Juncal.
26

                                                   3
 1          2. Substantive Unreasonableness

 2          Substantive reasonableness “focuses on a district court’s explanation of its sentence
 3   in light of the factors contained in 18 U.S.C. § 3553(a).” United States v. Gonzalez, 529
 4   F.3d 94, 98 (2d Cir. 2008). We will vacate a sentence for substantive unreasonableness
 5   only if it “cannot be located within the range of permissible decisions.” United States v.
 6   Watkins, 667 F.3d 254, 261 (2d Cir. 2012) (quoting Cavera, 550 F.3d at 189 (2d Cir.
 7   2008)). All three Defendants argue that their sentences are substantively unreasonable
 8   largely because the fraudulent scheme for which they were convicted – an attempt to obtain
 9   three billion dollars, purportedly to finance a pipeline in Siberia – was so entirely
10   implausible as to be doomed to fail. The Defendants acknowledge that the District Court,
11   after determining that the applicable Guidelines range for each Defendant was the statutory
12   maximum of twenty years’ imprisonment based on the intended loss of three billion
13   dollars, see 18 U.S.C. § 1343; U.S.S.G. §§ 2B1.1(b)(P), 5G1.1(a) (2013), eventually
14   settled on sentences either at or below the applicable Guidelines range. Nevertheless, they
15   argue, basing their offense level on an intended loss without initial regard for the
16   implausibility of the scheme resulted in sentences that were unreasonably high.
17          We might have been persuaded by the Defendants’ arguments had the District Court
18   relied exclusively on the seriousness of their offense. But the District Court also based the
19   sentences on the Defendants’ history of fraudulent behavior. The District Court noted, for
20   example, that Juncal, who was 68 years old at the time of resentencing, had engaged in
21   criminal acts of fraud since the age of 25 and previously had been arrested eight times and
22   convicted four times for fraudulent conduct. Campbell had also previously engaged in
23   several frauds, resulting in several felony fraud convictions. Worse yet, he committed one
24   of those frauds while incarcerated in 1997, and committed the pipeline fraud at issue in this
25   case while on parole for three prior fraud convictions. It is true that Sampson had not been
26   convicted of fraud before this case, and his claim of substantive reasonableness therefore
                                                   4
 1   presents a closer call. Nevertheless, as the District Court observed, Sampson successfully
 2   defrauded a company’s chief executive officer of $75,000 while on pretrial release and
 3   supervision awaiting trial for the pipeline fraud.1 Particularly because of the Defendants’
 4   previous criminal conduct, and the strong deference afforded to district courts in
 5   sentencing defendants, we conclude that this is not one of the “exceptional cases where the
 6   trial court’s decision cannot be located within the range of permissible decisions.”
 7   Cavera, 550 F.3d at 189 (quotation marks omitted).
 8          We have considered all of the Defendants’ remaining arguments and conclude that
 9   they are without merit. For the foregoing reasons, the judgments of the District Court are
10   AFFIRMED.
11                                                    FOR THE COURT:
12                                                    Catherine O=Hagan Wolfe, Clerk of Court
13




     1
       The District Court initially resentenced Sampson to seventeen years’ imprisonment but
     later reconsidered its decision and decreased the sentence by two years based on a
     statement Sampson made at his resentencing hearing that acknowledged the seriousness of
     the crime he committed and that the District Court viewed as a sign of remorse.

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