13-769-cr
United States v. Trudeau



                 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.

           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 14th day of April, two thousand fourteen.

PRESENT:   JOHN M. WALKER, JR.,
           DENNY CHIN,
                     Circuit Judges.*

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UNITED STATES OF AMERICA,
                    Appellee,

                       -v-                            13-769-cr

WILLIAM A. TRUDEAU, JR.,
                    Defendant-Appellant.

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FOR APPELLEE:                    RAHUL KALE (Robert M. Spector, on
                                 the brief), Assistant United States
                                 Attorneys, for Deirdre M. Daly,
                                 United States Attorney for the
                                 District of Connecticut.

FOR DEFENDANT-APPELLANT:         ROSS H. GARBER (Paul Stuart Bailin,
                                 Michael Chase, Shipman & Goodwin
                                 LLP, Hartford Connecticut and James
                                 K. Filan, Filan LLC, Westport
                                 Connecticut, on the brief), Shipman
                                 & Goodwin LLP, Hartford
                                 Connecticut.
     *
           Because Judge Christopher F. Droney, originally assigned to
the panel, recused himself from this case, the remaining two judges
issue this order in accordance with Second Circuit Internal Operating
Procedure E(b).
            Appeal from the United States District Court for the

District of Connecticut (Hall, J.).
            UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the case is REMANDED.

            Defendant-appellant William A. Trudeau appeals from a

judgment of the district court (Hall, J.) entered on February 15,
2013, following a jury trial.    The jury convicted Trudeau of one

count of conspiracy to commit bank fraud, mail fraud, and wire

fraud, in violation of 18 U.S.C. § 1349 ("Count One"), and one

count of wire fraud ("Count Nine"), in violation of 18 U.S.C. §

1343, and acquitted him of two counts of bank fraud, three counts

of mail fraud, and two counts of wire fraud (the "acquitted

counts").    The district court sentenced him principally to 188

months' imprisonment.    On appeal, Trudeau challenges his sentence

as procedurally and substantively unreasonable.    We assume the

parties' familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.
A.   Applicable Law

            We review a sentence imposed by a district court for

procedural and substantive reasonableness.    United States v.

Cavera, 550 F.3d 180, 189-90 (2d Cir. 2008) (en banc).    "We 'must

first ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to


                                 -2-
adequately explain the chosen sentence.'"    United States v.

Tutty, 612 F.3d 128, 130-31 (2d Cir. 2010) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)).

          We have held that "the Guidelines direction to apply

the statutory maximum[ ] . . . serves as the district court's

'starting point' in selecting a sentence."    United States v.

Dorvee, 616 F.3d 174, 182 (2d Cir. 2010)(quoting Kimbrough v.

United States, 552 U.S. 85, 108 (2007)).    Accordingly, "[i]f the

district court miscalculates the typical sentence at the outset .

. . we . . . cannot be sure that the court has adequately

considered" the proper sentencing factors.    Id.   We review
procedural sentencing challenges for plain error if they were not

raised in the district court.   United States v. Villafuerte, 502

F.3d 204, 208 (2d Cir. 2007).

          A sentence imposed by the district court is

substantively unreasonable only if it "cannot be located within

the range of permissible decisions."    Cavera, 550 F.3d at 189

(internal quotation marks omitted).    Because we will not

substitute our judgment for that of the district court, United
States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006), we will set

aside sentencing decisions only in "exceptional cases," Cavera,

550 F.3d at 189.

          Section 1B1.2(d) of the United States Sentencing

Guidelines (the "Guidelines") provides that "[a] conviction on a

count charging a conspiracy to commit more than one offense shall

be treated as if the defendant had been convicted on a separate

count of conspiracy for each offense that the defendant conspired


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to commit."   U.S.S.G. § 1B1.2(d).     Application Note 4 of Section

1B1.2(d) instructs that "[p]articular care must be taken in

applying subsection (d) because there are cases in which the

verdict or plea does not establish which offense(s) was the

object of the conspiracy."    U.S.S.G. § 1B1.2(d) cmt. n. 4 ("Note

4").   In such instances, the district court should apply

subsection (d) to an object offense only if the district court,

"were it sitting as a trier of fact, would convict the defendant

of conspiring to commit that object offense."     Id.   In that

event, the burden of proof is beyond a reasonable doubt.      See

United States v. Malpeso, 115 F.3d 155, 167-68 (2d Cir. 1997)

(considering application of Note 4, formerly U.S.S.G.         §

1B1.2(d) cmt. n. 5).

           If, however, "the object offenses specified in the

conspiracy count would be grouped together under                    §

3D1.2(d) . . . it is not necessary to engage in the foregoing

analysis."    U.S.S.G. § 1B1.2(d) cmt. n. 4.   Accordingly, as with

any sentencing factor, the district court has the "authority to

determine [this] sentencing factor[ ] by a preponderance of the

evidence[,] . . . [which] does not violate the Due Process Clause

of the Fifth Amendment."    United States v. Vaughn, 430 F.3d 518,
525 (2d Cir. 2005).    In concluding that Note 4 is constitutional,

we have explained that "[b]ecause [a] conspiracy conviction is

satisfied if any one of the objects is proved beyond a reasonable

doubt, the multiplicity of objects can only be, and certainly is,

relevant to sentencing."    Malpeso, 115 F.3d at 168.




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            The Supreme Court has recently held that "[a]ny fact

that, by law, increases the penalty for a crime is an 'element'

that must be submitted to the jury and found beyond a reasonable

doubt."   Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013).

Accordingly, "any fact that increase[s] the prescribed statutory

maximum sentence must be an 'element' of the offense to be found

by the jury."    Id. at 2157 (citing Apprendi v. New Jersey, 530

U.S. 466, 483 (2000)).

            The statutory maximum sentence for committing or

conspiring to commit wire fraud is 20 years.     See 18 U.S.C.
§§ 1343, 1349.     If the wire fraud "affects a financial

institution," however, the statutory maximum for committing or

conspiring to commit wire fraud is 30 years.     See id.    The

statutory maximum sentence for conspiring to commit bank fraud is

30 years.    See 18 U.S.C. § 1341.
B.   Application

            First, Trudeau claims that the district court erred in

its application of the Guidelines "by rejecting the jury's

determination of the object of the multi-object conspiracy

charged in Count One."     Appellant's Br. at 19.   This argument

fails because the district court did not reject the jury's

determination, but rather properly applied Note 4.      As an initial

matter, Trudeau's contention that the acquitted counts

demonstrate that the jury did not find the objects of the

conspiracy associated with those counts fails because the jury

could convict for conspiracy even if the substantive crimes were

not proven.    Likewise, the verdict did not establish which

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offense or offenses –- bank fraud, mail fraud, and/or wire fraud

–- were the objects of the conspiracy.    See U.S.S.G. § 1B1.2(d)

cmt. n. 4.   Indeed, the jury was instructed that to convict

Trudeau under Count One it "need not find that the conspirators

agreed to accomplish all three objectives."    Accordingly, as the

district court concluded, Note 4 was relevant to the sentencing

determination.

          Moreover, the district court correctly applied Note 4.

Because "the object offenses specified in the conspiracy count

would be grouped together under § 3D1.2(d)," the district court

did not need to find the objects of the conspiracy beyond a

reasonable doubt.   See U.S.S.G. § 1B1.2(d) cmt. n. 4.   Instead,
the district court only needed to find the objects by a

preponderance of the evidence, which it did.    Hence, we find no

error in the district court's application of Note 4.

          Second, Trudeau contends that even if the district

court correctly applied Note 4, its application violated his

constitutional rights.   We disagree.   We reject Trudeau's

argument that the application of Note 4 violated his Fifth

Amendment right to due process because the district court was not

required to find the object offenses grouped pursuant to       §

3D1.2(d) beyond a reasonable doubt.     Indeed, we have explicitly

held that the district court has the "authority to determine

sentencing factors by a preponderance of the evidence" and that

this authority "does not violate the Due Process Clause of the

Fifth Amendment."   Vaughn, 430 F.3d at 525.



                                -6-
           Trudeau's Sixth Amendment challenge also fails.    As we

have made clear, "[b]ecause [a] conspiracy conviction is

satisfied if any one of the objects is proved beyond a reasonable

doubt, the multiplicity of objects can only be, and certainly is,

relevant to sentencing."   Malpeso, 115 F.3d at 168.    Accordingly,

the district court correctly recognized its ability to consider

the conduct alleged in Count One to determine Trudeau's sentence,

despite the fact that the acquitted counts were based on the same

conduct.

           Trudeau contends that the Supreme Court's recent

decision in Alleyne v. United States demands a different result.
The central inquiry pursuant to Alleyne, however, is whether the

district court found "[a]ny fact that, by law, increase[d] the

penalty for a crime."   133 S.Ct. at 2155.    Here, the district

court did not make any such finding, with one caveat we address

below.   Specifically, the district court's consideration of the

conduct alleged in Count One to determine, among other things,

the amount of loss and the number of victims that resulted from

the conspiracy did not increase the penalty for Trudeau's

offenses by law.   See id. at 2155.     Instead, the district court
considered the conduct as relevant to exercising its discretion

within the legally prescribed statutory range.     See id. at 2163

(explaining that the decision in Alleyne is "wholly consistent

with the broad discretion of judges to select a sentence within

the range authorized by law.").    Accordingly, Trudeau's

constitutional challenges fail.



                                  -7-
          We do find, however, that the district court committed

procedural error by failing to acknowledge the correct statutory

maximum sentence for Counts One and Nine.   Specifically, the

district court determined that the applicable Guidelines range

was 210 to 262 months' imprisonment, even though the statutory

maximum sentence for conspiring to commit or committing wire

fraud that does not affect a financial institution is 20 years.

See 18 U.S.C. §§ 1343, 1349.   Moreover, the PSR stated, without

explanation, that the statutory maximum sentence pursuant to 18

U.S.C. §§ 1343 and 1349 was 30 years.

           We note that the jury would have needed to find at

least one additional fact beyond a reasonable doubt for the      30-

year statutory maximum to apply to Count One and/or Count Nine.

See Alleyne, 133 S.Ct. at 2155.    Specifically, the jury needed to
find beyond a reasonable doubt that either the conspiracy to

commit wire fraud or the substantive wire fraud count "affect[ed]

a financial institution," or that bank fraud was an object of the

conspiracy.   See 18 U.S.C. §§ 1341, 1343, 1349.   It is not clear
from the jury's verdict, however, that either determination was

made.   Indeed, at oral argument, the Government acknowledged that

the jury should have made a finding as to whether Trudeau's

conspiracy to commit wire fraud "[a]ffected a financial

institution."   Accordingly, the Government conceded, and we

agree, that the applicable statutory maximum sentence for each

offense was 20 years.

           Even though Trudeau did not object to the statutory

maximum sentence below, we conclude that the error was plain.     It


                                  -8-
implicated Trudeau's "substantial rights, as it seriously

affect[ed] the fairness, integrity, or public reputation of the

judicial proceedings."   Tutty, 612 F.3d at 131 (internal

quotation marks omitted and alteration in original).    Moreover,

even though the district court imposed a sentence under the      20-

year statutory maximum, because of its "miscalculat[ion]      . .

. at the outset," we "cannot be sure that the court . . .

adequately considered" the proper sentencing factors.   Dorvee,

616 F.3d at 182.   Accordingly, we remand the case so that the

court may reconsider Trudeau's sentence in light of a 20-year

statutory maximum sentence for each offense.

          Finally, Trudeau claims that his sentence was

substantively unreasonable.   Even where we find procedural error,

"we may review for both procedural error and substantive

unreasonableness in the course of the same appeal."    Tutty, 612
F.3d at 131.   We do so here –- especially as we recognize the

district court's discretion on remand to impose the same      188-

month sentence as it is below the 20-year statutory maximum

sentence -- and find that the district court did not commit

substantive error.   We reject Trudeau's argument that "the

sentence imposed as a result of the district court's          fact-

finding was unconstitutionally disproportionate and unreasonable

based on the jury verdict" for the reasons that we discuss above.

Appellant's Br. at 37.

          Further, the district court carefully considered the

factors provided in 18 U.S.C. § 3553(a).   In particular, it noted

that "with respect to the individual victims of [Trudeau's] fraud

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scheme, [he] cause[d] serious harm to them, to their well being,

[and] to their economic security."      App. at 274.    Moreover, the

district court emphasized that Trudeau's pattern of "looking for

the next victim to keep [his] house of cards up from the victims

that [he] h[ad] already sucked dry," warranted a sentence to

"protect[ ] the public from further crimes."      Id.   In light of

these factors, we find that the      188-month sentence imposed by

the district court was well "within the range of permissible

decisions."    Cavera, 550 F.3d at 191.
            In sum, except in one respect, we conclude that the

district court properly applied Note 4 and we find the sentence
was substantively reasonable.     Nevertheless, the case is REMANDED

solely for the district court to consider whether it would have

sentenced Trudeau differently if it had understood the statutory

maximum sentence was 20 years for each count.      If so, it may

resentence Trudeau anew.     If not, the judgment shall stand.     This

panel will retain jurisdiction over any subsequent appeal

pursuant to United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.
1994).   Accordingly, either party may notify the Clerk of a

renewed appeal within fourteen days of the district court's

decision.    See id.   Trudeau's motion for an order granting his
release pending appeal is DENIED.

                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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