     13-2185
     United States v. Cassidy

                          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 17th day of June, two thousand fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROBERT D. SACK,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-2185
16
17       KEVIN CASSIDY,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        DOUGLAS R. JENSEN (Eyal Dror, on
22                                             the brief), Park & Jensen, LLP,
23                                             New York, N.Y.
24
25       FOR APPELLEES:                        EUN YOUNG CHOI (Justin S.
26                                             Weddle, on the brief), for Preet
27                                             Bharara, United States Attorney
28                                             for the Southern District of New
29                                             York, New York, N.Y.

                                                  1
1
2         Appeal from a judgment of the United States District
3    Court for the Southern District of New York (Griesa, J.).
4
5         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
6    AND DECREED that the judgment of the district court be
7    AFFIRMED.
8
9        Kevin Cassidy appeals from a judgment of the United

10   States District Court for the Southern District of New York

11   (Griesa, J.) convicting him of conspiracy to commit wire

12   fraud, in violation of 18 U.S.C. § 371.     Cassidy challenges

13   the portion of the judgment that orders him to pay

14   restitution pursuant to the Mandatory Victims Restitution

15   Act (“MVRA”), 18 U.S.C. §§ 3663A, 3664.     We assume the

16   parties’ familiarity with the underlying facts, the

17   procedural history, and the issues presented for review.

18       “[W]e review an MVRA order of restitution

19   deferentially, and we will reverse only for abuse of

20   discretion.”    United States v. Gushlak, 728 F.3d 184, 190

21   (2d Cir. 2013) (quoting United States v. Boccagna, 450 F.3d

22   107, 113 (2d Cir. 2006)).    “A district court abuses its

23   discretion when a challenged ruling rests on an error of

24   law, a clearly erroneous finding of fact, or otherwise

25   cannot be located within the range of permissible

26   decisions.”    Id.   (quotation marks omitted).

27       Cassidy argues that the complexity of factual issues

28   involved in calculating the losses to the Bank of Montreal

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1    renders the restitution order improper.   While the MVRA

2    imposes mandatory restitution with the purpose of making

3    victims of crime whole, it does have limitations.    See

4    United States v. Maynard, 743 F.3d 374, 377-78 (2d Cir.

5    2014).   If the record shows that “determining complex issues

6    of fact related to the cause or amount of the victim’s

7    losses would complicate or prolong the sentencing process to

8    a degree that the need to provide restitution to any victim

9    is outweighed by the burden on the sentencing process,” then

10   the MVRA “shall not apply.”   18 U.S.C. § 3663A(c)(3).

11       Once it is found that complex issues do not lend

12   themselves to resolution in the sentencing context, the

13   sentencing court may not proceed.   But it lies within the

14   sound discretion of the district court to decide whether the

15   factual issues underlying a restitution order are so complex

16   as to unduly burden the sentencing process.   See United

17   States v. Zangari, 677 F.3d 86, 93 (2d Cir. 2012).    Because

18   the Bank of Montreal sought two narrowly defined forms of

19   compensation as restitution, the district court determined

20   that it had before it all of the information necessary for a

21   decision on restitution.   The restitution hearings conducted

22   soon after the court’s initial sentencing decision did not

23   greatly prolong the sentencing process.   Cassidy argues

24   otherwise, and an exercise of discretion otherwise might

                                   3
1    well have been sound.   But we cannot conclude that the

2    district court abused its discretion in deciding that the

3    factual issues could be resolved within the sentencing

4    process.

5        Cassidy presents other arguments regarding the need for

6    an evidentiary hearing, the district court’s application of

7    the standard of proof, and the calculation of the Bank of

8    Montreal’s losses.   We conclude that the restitution order

9    was proper for substantially the reasons set forth in the

10   district court’s statements on the record at its October 16,

11   2012 restitution hearing.

12

13       For the foregoing reasons, we hereby AFFIRM the

14   judgment of the district court.

15
16
17                               FOR THE COURT:
18                               CATHERINE O’HAGAN WOLFE, CLERK
19




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