12-3162-cr
United States v. Kontogiannis (Michael)

                               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
5th day of June, two thousand thirteen.

Present:
            RALPH K. WINTER,
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges.
____________________________________________________

United States of America,

                          Appellee,

                 v.                                                         No. 12-3162-cr

Thomas Kontogiannis, et al.,

                          Defendants,

John T. Michael,

                  Defendant-Appellant.
____________________________________________________

FOR APPELLANT:                    Raymond R. Granger and Howard B. Zakai, Granger & Associates
                                  LLC, New York, NY.



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FOR APPELLEE:           Susan Corkery, Shannon C. Jones, Rena Paul, Assistant United
                        States Attorneys, for Loretta E. Lynch, United States Attorney for
                        the Eastern District of New York, Brooklyn, NY.
____________________________________________________

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

New York (Matsumoto, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant John T. Michael appeals from the district court’s judgment

convicting him of conspiring to commit bank and wire fraud and sentencing him, in relevant

part, to a prison term of 12 months and 1 day. On appeal, Michael argues that the district court

erroneously considered, as factors weighing in favor of a longer sentence, his prior convictions

from the Southern District of California or the conduct underlying those convictions. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the specific issues raised on appeal.

       We generally review a district court’s sentencing decisions for both substantive and

procedural reasonableness.1 United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir. 2007).

“Reasonableness review is similar to review for abuse of discretion and may require reversal

when the district court’s decision cannot be located within the range of permissible decisions or

is based on a legal error or clearly erroneous factual finding.” Id. (internal quotation marks

omitted). “Substantive reasonableness involves the length of the sentence imposed in light of the

factors enumerated under 18 U.S.C. § 3553(a),” while “[p]rocedural reasonableness concerns the

procedures a district court employs in arriving at a sentence.” Id.

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  The parties dispute whether Michael’s arguments should be reviewed for plain error under Fed.
R. Crim. P. 52(b). Because we find that Michael’s arguments are meritless under the more
lenient reasonableness standard of review, we decline to resolve this issue.
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       Here, the district court was explicitly permitted to consider Michael’s prior convictions in

the Southern District of California and the conduct underlying those convictions pursuant to 18

U.S.C. § 3553(a)(1), which required the court to fashion its sentence based on “the nature and

circumstances of the offense and the history and characteristics of the defendant.” Contrary to

Michael’s assertion, he was not thereby punished twice for the same conduct. See, e.g., Witte v.

United States, 515 U.S. 389, 397 (1995) (rejecting the notion that “consideration of uncharged

conduct in arriving at a sentence within the statutorily authorized punishment range constitutes

‘punishment’ for that conduct”); Williams v. New York, 337 U.S. 241, 247 (1949) (“Highly

relevant—if not essential—to [the sentencing court’s] selection of an appropriate sentence is the

possession of the fullest information possible concerning the defendant’s life and

characteristics.”). A different conclusion is not warranted by the district court’s finding that the

conduct underlying Michael’s Southern District of California convictions was part of the instant

offense and thus played a role in calculating his total offense level under the Sentencing

Guidelines. Cf. United States v. Maloney, 406 F.3d 149, 152 (2d Cir. 2005) (“We have

repeatedly held . . . that a district court calculating a Guidelines sentence may apply multiple

Guidelines provisions based on the same underlying conduct where that is the result clearly

intended by Congress and the Sentencing Commission.”).

       Moreover, contrary to Michael’s assertion, the district court’s consideration of his

Southern District of California convictions did not constitute “impermissible double counting.”

“Impermissible ‘double counting’ is the judicial augmentation of a defendant’s sentence in

contravention of [an] applicable statute or Sentencing Guideline.” United States v. Torres-

Echavarria, 129 F.3d 692, 699 (2d Cir. 1997) (emphasis omitted). Not surprisingly, Michael




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fails to identify a particular statute or Guideline that the district court violated by treating the

convictions at issue as factors weighing in favor of a longer sentence.

        Finally, the district court did not create an unwarranted sentence disparity between

Michael and codefendant Thomas Kontogiannis by finding that Michael’s Southern District of

California convictions weighed in favor of a longer sentence without making a corresponding

finding in sentencing Kontogiannis. While a district court may consider “similarities and

differences among co-defendants” as a factor in imposing a sentence, it is not required to, and it

need not engage in perfectly parallel analyses of personal and historical traits when sentencing

co-defendants. United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on other

grounds by United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2009) (en banc).

        Nor does the substantive difference between Michael’s and Kontogiannis’s sentences

establish an unwarranted disparity. “[E]ven assuming arguendo that 18 U.S.C. § 3553(a)(6) can

support a reduced sentence designed to eliminate or diminish disparity between the sentences

imposed on co-defendants, those co-defendants would have to be similarly situated because the

provision mandates that sentencing judges take into account ‘unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.’” United

States v. Fernandez, 443 F.3d 19, 31-32 (2d Cir. 2006) (footnote omitted) (emphasis in

Fernandez) (quoting 18 U.S.C. § 3553(a)(6)). As Michael himself recognizes, he and

Kontogiannis were neither similarly situated nor treated as such by the district court. Thus, there

is no basis for concluding that the disparity between the sentences of Michael and Kontogiannis

was unwarranted. To the extent that Michael intends to argue that the disparity between the two

sentences at issue should have been even greater, he has not cited any relevant legal authority for

such an argument.



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       We have considered Michael’s remaining arguments on appeal and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.



                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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