     18-1831
     United States v. Gilmartin

                                  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,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 5th day of May , two thousand twenty.
 4
 5           PRESENT: RAYMOND J. LOHIER, JR.,
 6                            JOSEPH F. BIANCO,
 7                            MICHAEL H. PARK,
 8                                    Circuit Judges.
 9           ------------------------------------------------------------------
10           UNITED STATES OF AMERICA,
11
12                           Appellee,
13
14                     v.
15
16           DAVID GILMARTIN,                                                      No. 18-1831
17
18                            Defendant-Appellant.
19           ------------------------------------------------------------------
20
21           FOR DEFENDANT-APPELLANT:                                  David Gilmartin, pro se,
22                                                                     Barstow, CA.
 1         FOR APPELLEE:                                Stanley J. Okula, Jr., Nanette L.
 2                                                      Davis, Special Assistant United
 3                                                      States Attorneys, Karl
 4                                                      Metzner, Assistant United
 5                                                      States Attorney, for Geoffrey S.
 6                                                      Berman, United States
 7                                                      Attorney for the Southern
 8                                                      District of New York, New
 9                                                      York, NY.

10         Appeal from a judgment of the United States District Court for the

11   Southern District of New York (Valerie E. Caproni, Judge).

12         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

13   AND DECREED that the amended judgment and orders of the District Court are

14   AFFIRMED.

15         David Gilmartin appeals from an amended judgment and orders, entered

16   on May 9, 2018 and June 5, 2018, by the United States District Court for the

17   Southern District of New York (Caproni, J.) modifying the restitution order that

18   was imposed at Gilmartin’s sentencing and denying Gilmartin’s motion to

19   reconsider the modification. We assume the parties’ familiarity with the

20   underlying facts and prior record of proceedings, to which we refer only as

21   necessary to explain our decision to affirm.



                                              2
 1         As an initial matter, we note that the parties dispute whether our review

 2   on appeal is limited to the District Court’s denial of the motion for

 3   reconsideration, or whether we can review the underlying order that modified

 4   the restitution order. Given the limited scope of the notice of appeal, which by

 5   its terms designates only the District Court’s order denying the motion for

 6   reconsideration, we agree with the Government that our review is limited to

 7   whether the District Court’s denial of reconsideration was an abuse of discretion.

 8   See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 1995).

 9         We conclude that the District Court did not abuse its discretion in denying

10   Gilmartin’s motion for reconsideration. See United States v. Yalincak, 853 F.3d

11   629, 635 (2d Cir. 2017). The motion failed to raise any new arguments that the

12   District Court had not already addressed in its May 1, 2018 opinion and order.

13   The motion also did not point to controlling authority or evidence that the

14   District Court overlooked in its original order. See Shrader, 70 F.3d at 257.

15         Even assuming that we have jurisdiction to review the underlying

16   modification, see Van Buskirk v. United Grp. of Cos., Inc., 935 F.3d 49, 52 (2d Cir.

17   2019), we conclude that the District Court did not err in modifying Gilmartin’s


                                              3
 1   restitution order. We review the imposition of a restitution order for abuse of

 2   discretion, but our review is de novo when the defendant asserts an error of law.

 3   United States v. Thompson, 792 F.3d 273, 276–77 (2d Cir. 2015). A district court

 4   may modify the restitution schedule if there is a “material change in the

 5   defendant’s economic circumstances.” 18 U.S.C. § 3664(k).

 6         There is no doubt that Gilmartin’s economic circumstances materially

 7   changed after his release from prison. At the time of sentencing, Gilmartin was

 8   not collecting Social Security benefits. Following his release, Gilmartin elected to

 9   receive Social Security benefits, which satisfies the statutory test for a “material

10   change in the defendant’s economic circumstances.” 18 U.S.C. § 3664(k); see also

11   United States v. Grant, 235 F.3d 95, 100–01 (2d Cir. 2000) (holding that the release

12   of frozen funds and the consequent availability of the funds following

13   defendant’s release from prison constituted a “material change”). Gilmartin also

14   argues that the sentencing judge intentionally exempted any Social Security

15   retirement benefits from restitution payments. In the absence of more explicit

16   language that the sentencing judge even considered Gilmartin’s Social Security

17   benefits, we cannot conclude that those benefits were purposefully exempted


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1   from these payments as Gilmartin claims.

2         We have considered Gilmartin’s remaining arguments and conclude that

3   they are without merit. For the foregoing reasons, the amended judgment and

4   orders of the District Court are AFFIRMED.

5                                       FOR THE COURT:
6                                       Catherine O=Hagan Wolfe, Clerk of Court
7




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