18-1965-cr
United States v. DiMartino

                             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
16th day of December, two thousand nineteen.

PRESENT:    PETER W. HALL,
            JOSEPH F. BIANCO,
                        Circuit Judges,
            TIMOTHY C. STANCEU,
                        Judge.*
_____________________________________

United States of America,
                      Appellee,

                        v.                                         18-1965

Kevin DiMartino,
                  Defendant-Appellant.
_____________________________________

For Appellant:                               BRUCE R. BRYAN, ESQ., Syracuse, NY.

For Appellee:                                TIFFANY H. LEE, Assistant United States Attorney, for
                                             James P. Kennedy, Jr., United States Attorney for the
                                             Western District of New York, Rochester, NY.

*Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by
designation.
       Appeal from a judgment of the United States District Court for the Western District

of New York (Geraci, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

       Defendant-Appellant Kevin DiMartino appeals the June 28, 2018 judgment of the

United States District Court for the Western District of New York (Geraci, J.) sentencing him

to 125 months’ imprisonment to be followed by fifteen years’ supervised release and imposing

several conditions of supervision. DiMartino pleaded guilty to knowing possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The plea agreement stipulated that

DiMartino’s Sentencing Guidelines range would be 78 to 97 months of imprisonment, but

DiMartino’s post-plea conduct led the United States Probation Office to revise its

recommendation to a Guidelines range of 168 to 210 months based on the application of

additional sentencing enhancements and the denial of a sentencing reduction for acceptance

of responsibility. The District Court did allow for the three-level sentencing reduction for

acceptance of responsibility but applied the other two upward enhancements for obstruction

of justice and distribution of images, which resulted in a Guidelines range of 121 to 151

months’ imprisonment.       We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the arguments on appeal.

       DiMartino first challenges the procedural reasonableness of his 125-month sentence,

arguing that the District Court erred by applying a two-level enhancement for obstruction of

justice. A district court commits procedural error if it “(1) fails to calculate the Guidelines


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range; (2) is mistaken in the Guidelines calculation; (3) treats the Guidelines as mandatory; (4)

does not give proper consideration to the § 3553(a) factors; (5) makes clearly erroneous factual

findings; (6) does not adequately explain the sentence imposed; or (7) deviates from the

Guidelines range without explanation.” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).

“A district court’s factual findings at sentencing need be supported only by a preponderance

of the evidence, and such findings may be overturned only if they are clearly erroneous.”

United States v. Ryan, 806 F.3d 691, 694 (2d Cir. 2015) (internal quotation marks and citation

omitted).      Although we review factual findings for clear error, “[w]hether those facts

constitute obstruction of justice . . . is a matter of legal interpretation subject to de novo review.”

United States v. Ayers, 416 F.3d 131, 133 (2d Cir. 2005).

           DiMartino contends that there was insufficient evidence that he intended to obstruct

justice.     Specifically, he argues that (1) the District Court should not have credited his

boyfriend’s recantation of his prior statement that DiMartino was never alone with the

boyfriend’s young son, and (2) there is insufficient evidence that DiMartino asked his friend,

Paula Nuccie, to obtain a statement from DiMartino’s boyfriend saying that DiMartino was

never alone with the boyfriend’s son. Whether DiMartino had the intent of securing a false

statement from his boyfriend is a factual matter. See United States v. Riley, 452 F.3d 160, 165

(2d Cir. 2006).

           We are not persuaded by DiMartino’s argument that his boyfriend’s recantation has

insufficient indicia of reliability. The text messages between the boyfriend and his son’s

mother discussing how the boyfriend would leave the child with DiMartino at DiMartino’s


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house support the District Court’s decision to credit the boyfriend’s recantation rather than

the prior statement. The phone call recorded by DiMartino’s friends in October 2017 lends

little credibility to the boyfriend’s prior statement because the phone conversation was

contrived for DiMartino’s benefit. Nor does the letter from DiMartino’s tenant cast doubt

on the boyfriend’s admission that he did in fact leave his son alone with DiMartino. The

tenant’s letter does not state that the tenant was always at DiMartino’s house. And one of

the occasions when DiMartino was alone with the boyfriend’s son, according to the boyfriend,

was not at DiMartino’s house but rather in a truck parked at a warehouse.

       It is true, as DiMartino points out, that Nuccie did not testify that DiMartino asked her

to obtain a statement from the boyfriend saying DiMartino was never alone with the

boyfriend’s son. Having reviewed all the evidence in the record, however, we find sufficient

support for the District Court’s inference that DiMartino instructed Nuccie to financially

support and otherwise assist the boyfriend with the intention of securing the false statement

from the boyfriend. Nuccie’s testimony, the recorded jail phone calls, and the text messages

from Nuccie to the boyfriend on January 8, 2018 establish that: DiMartino, while in jail, asked

Nuccie to provide various forms of assistance to the boyfriend,; Nuccie provided such

assistance to the boyfriend; Nuccie told DiMartino that she was keeping tabs on the boyfriend

and making sure he was doing what he was supposed to be doing; Nuccie arranged to have

the boyfriend write both a character reference and a letter stating that the boyfriend never left

DiMartino alone with the boyfriend’s son; and Nuccie informed DiMartino, using coded

allusions, that she got a letter or letters signed by the boyfriend. According to the pre-


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sentence report (“PSR”), moreover, when Nuccie was interviewed by the FBI case agent,

Nuccie indicated that “DiMartino told her to have [the boyfriend] testify that nothing

happened between DiMartino and the minor victim” and that “DiMartino advised Nuccie to

take care of [the boyfriend], paying his cell phone bills, taking his medication, and making sure

he wasn’t getting in trouble . . . so [the boyfriend] would testify on his behalf.” PSR at 12

(¶ 50). It is arguably possible that DiMartino asked Nuccie to assist his boyfriend purely out

of concern for him. But “[w]here there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” United States v. Murphy, 703

F.3d 182, 188 (2d Cir. 2012).

       DiMartino also challenges the substantive reasonableness of his 125-month sentence.

We must “set aside a district court’s substantive determination only in exceptional cases where

the trial court’s decision ‘cannot be located within the range of permissible decisions.’” United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490

F.3d 208, 238 (2d Cir. 2007)). “[W]e will reverse the district court’s decision only if the

sentence imposed amounts to a ‘manifest injustice or shocks the conscience.’” United States

v. Spoor, 904 F.3d 141, 156 (2d Cir. 2018), cert. denied, 139 S. Ct. 931 (2019) (quoting Rigas, 583

F.3d at 124) (alteration omitted).

       DiMartino argues, first, that the District Court should not have used the child

pornography Guideline as a starting point for determining his sentence, citing United States v.

Dorvee, 616 F.3d 174 (2d Cir. 2010), and United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017). It

is true that this Court has expressed concern about the child pornography Guideline—“an


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eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily

generate unreasonable results,” Dorvee, 616 F.3d at 188—but the sentence imposed in this case

is hardly comparable to the shockingly high sentences imposed in Dorvee and Jenkins. In

Dorvee, the district court imposed the statutory maximum of 240 months despite being

presented with medical evidence that Dorvee was unlikely to initiate sexual conduct with a

child, 616 F.3d at 183–84, and in Jenkins, the district court imposed 225 months even though

Jenkins never produced or distributed child pornography or harmed a child, 854 F.3d at 190–

91.

       DiMartino also emphasizes the presence of mitigating factors in his case. The District

Court gave due consideration, however, to DiMartino’s vulnerability relative to other

prisoners, his admission of guilt, the burdens imposed by the Sex Offender Registration Act,

and the evidence of DiMartino’s good character and community service. The District Court

did not exceed the bounds of its discretion in weighing those factors against the large quantity

of child pornography that DiMartino possessed, DiMartino’s violation of a condition of his

release, and his efforts to obstruct justice.

       We have considered DiMartino’s remaining arguments and find them to be without

merit. The judgment is AFFIRMED.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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