12-49-cr
United States v. Guerino

                           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
26th day of June, two thousand fifteen.

Present:
            ROBERT D. SACK,
            PETER W. HALL,
            SUSAN L. CARNEY,
                        Circuit Judges.
____________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

               v.                                                           No. 12-49-cr

JOSEPH GUERINO, AKA GUERINO JOSEPH,

                  Defendant–Appellant.
____________________________________________________

FOR APPELLANT:                Jonathan I. Edelstein, Edelstein & Grossman, New York, NY.

FOR APPELLEE:           Jo Ann M. Navickas and Matthew M. Amatruda, Assistant United
                        States Attorneys, for Kelly T. Currie, Acting United States
                        Attorney for the Eastern District of New York, Brooklyn, NY.
____________________________________________________



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

New York (Vitaliano, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Joseph Guerino (“Guerino”) appeals from a final judgment of

conviction and sentence entered by the United States District Court for the Eastern District of

New York after a jury found him guilty of conspiracy to commit Hobbs Act robbery, four

substantive counts of Hobbs Act robbery, and two counts of using a firearm in connection with

crimes of violence. On appeal, Guerino argues that witness statements made by cooperating

witnesses to the police were improperly admitted and that the district court’s sentence was both

procedurally and substantively unreasonable. We assume the parties’ familiarity with the

underlying facts, the procedural history, and the issues on appeal.

       Guerino challenges his conviction on the basis that the admission of statements made to

police by two cooperating witnesses was improper. The statements at issue were admitted

pursuant to Federal Rule of Evidence 801(d)(1)(B), which permits the admission of a declarant-

witness’s prior statement that are “consistent with the declarant’s testimony” if the statement is

offered “to rebut an express or implied charge that the declarant recently fabricated [the

challenged testimony] or acted from a recent improper influence or motive in so testifying.”

“We review the district court’s decision to admit a statement into evidence under Rule

801(d)(1)(B) for abuse of discretion.” United States v. Caracappa, 614 F.3d 30, 39 (2d Cir.

2010). Although the district court would have done better to identify more precisely when it

found the allegedly improper motive on the part of the cooperating witnesses to have arisen, we

find no abuse of discretion in the district court’s apparent conclusion that defendant’s opening



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statement and cross-examination questions implied that the cooperating witnesses’ motive to lie

arose when they became aware that they faced federal charges, rather than when they were

initially arrested. See United States v. Al-Moayad, 545 F.3d 139, 167 (2d Cir. 2008) (“The

statement must have been made before the declarant developed an alleged motive to fabricate.”

(internal quotation marks and brackets omitted)). Accordingly, we see no error in the conclusion

that the statements at issue were made before the alleged motive to fabricate arose and that they

were therefore admissible to rebut defendant’s assertion that the cooperating witnesses falsely

implicated defendant Guerino in order to secure more lenient treatment from the government in

their own cases.

       Defendant Guerino’s challenges to the procedural reasonableness of his sentence are

similarly without merit. First, contrary to defendant’s argument on appeal, the sentencing

transcript clearly shows that the district court did not improperly conflate the statutory maximum

sentence with the guidelines range. Rather, the district court properly observed that the

guidelines range calculated for Guerino’s robbery convictions (262 to 327 months) exceeded the

statutory maximum sentence for those convictions (240 months). Second, even assuming that

the district court erred in finding that the conduct underlying Guerino’s robbery convictions

warranted a four-level enhancement for “serious bodily injury” rather than a two-level

enhancement for “physical injury,” the record makes abundantly clear that such error was

harmless because “the district court would have imposed the same sentence in any event.”

United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009). Not only would Guerino’s Guidelines

range remain unchanged even if it were recalculated to apply only a two-level enhancement, but

the district court also imposed a below-guidelines sentence for each of the robbery convictions.




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       Defendant’s challenge to the substantive reasonableness of his sentence is also

unavailing. We “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) (quoting United States v. Rigas, 490

F.3d 208, 238 (2d Cir. 2007)) (en banc). The record reflects that the district court carefully

considered the 18 U.S.C. § 3553(a) sentencing factors when imposing the below-guidelines

sentence it selected, and we decline to “substitute our own judgment for the district court’s on

the question of what is sufficient to meet the § 3553(a) considerations.” Id.

       We have considered all of Guerino’s remaining arguments 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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