16-261
United States v. Fred Dalicandro


                       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 A 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 11th day of October, two thousand
seventeen.

PRESENT: DENNIS JACOBS,
         JOSÉ A. CABRANES,
         RAYMOND J. LOHIER, JR.,
                       Circuit Judges.

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UNITED STATES OF AMERICA,
                   Appellee,

               -v.-                              16-261

FRED DALICANDRO,
         Defendant-Appellant,

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RAYMOND TERMINI,
       Defendant.1

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FOR APPELLANT:                               Raymond M. Hassett (Jeffrey O.
                                             McDonald, on the brief), Hasset &
                                             George, P.C., New York, NY.

FOR APPELLEE:                                David J. Sheldon (Sandra S. Glover, on
                                             the brief), Assistant United States
                                             Attorneys, for Deirdre M. Daly,
                                             United States Attorney for the
                                             District of Connecticut, New Haven,
                                             CT.

     Appeal from an order of the United States District Court for the District of
Connecticut (Underhill, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the sentence of the district court be
AFFIRMED.

       Defendant Fred Dalicandro, who pleaded guilty to one count of wire fraud
in violation of 18 U.S.C. § 1343, appeals from a January 15, 2016 restitution order
imposing joint and several liability. Dalicandro argues (1) that the District Court
lacked authority to issue its restitution order years after the original sentencing,
and (2) that the District Court erred in not ordering apportionment between
Dalicandro and another participant in the fraudulent scheme to reflect the
greater role of defendant Raymond Termini, pursuant to 18 U.S.C. § 3664(h). We


1.The Clerk of the Court is respectfully directed to amend the official caption as
shown above.

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assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues presented for review.

       1. The government argues that the appeal waiver contained in
Dalicandro’s Plea Agreement forecloses review. The plea agreement, signed on
November 3, 2009, provides in relevant part that Dalicandro waived appeal or
collateral attack if his “sentence does not exceed 33 months, a three year term of
supervised release, restitution and a fine . . .” Joint App’x at 16. Assuming that
the waiver is unenforceable and that we may reach the merits of Dalicandro's
challenge, we affirm the judgment of the District Court.

       2. Dalicandro challenges the District Court’s authority to issue restitution
four years after the initial sentencing. He argues that: (1) since the victim’s losses
were identifiable 10 days prior to sentencing, 18 U.S.C. § 3664(d)(5) is not
applicable; (2) the District Court did not make clear prior to the 90-day deadline
set by 18 U.S.C. § 3664(d)(5) that restitution would be ordered, and therefore
could not order restitution years later; and (3) even if restitution had been
properly ordered, he was sufficiently prejudiced by the delay to justify vacating
the restitution order.

       “Federal courts have no inherent power to order restitution. Such authority
must be conferred by Congress.” United States v. Helmsley, 941 F.2d 71, 101 (2d
Cir. 1991). At issue here is the Mandatory Victim Restoration Act (“MVRA”), 18
U.S.C. §§ 3663A, 3664, which mandates that the sentencing court “shall order, in
addition to . . . any other penalty authorized by law,” defendants convicted of
certain enumerated offenses to “make restitution to the victim of the offense.”
United States v. Gushlak, 728 F.3d 184, 190 (2d Cir. 2013) (quoting 18 U.S.C. §§
3663A(a)(1)). One such offense is wire fraud. 18 U.S.C. § 1343.

       As to timing of restitution orders under the MVRA: when the victim’s
losses/amount of restitution is not ascertainable ten days prior to sentencing, the
district court “shall set a date for the final determination of the victim’s losses,
not to exceed 90 days after sentencing.” 18 U.S.C. § 3664(d)(5). If the amount is
ascertainable prior to ten days before sentencing, then “when sentencing a


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defendant . . . the court shall order . . . that the defendant make restitution to the
victim of the offense”; e.g., the restitution shall be ordered at the sentencing. 18
U.S.C. § 3663A(a)(1). The restitution ordered will not take into account “the
economic circumstances of the defendant,” and “[i]f the court finds that more
than 1 defendant has contributed to the loss of a victim, the court may make each
defendant liable for payment of the full amount of restitution or may apportion
liability among the defendants to reflect the level of contribution to the victim’s
loss and economic circumstances of each defendant.” 18 U.S.C. § 3664(f)(1), (h).

       “We generally review a district court’s order of restitution for abuse of
discretion, reversing its ruling only if it rests on an error of law, a clearly
erroneous finding of fact, or otherwise cannot be located within the range of
permissible decisions.” United States v. Rivernider, 828 F.3d 91, 114–15 (2d Cir.),
cert. denied sub nom. Ponte v. United States, 137 S. Ct. 456 (2016) (internal
citation and quotation marks omitted). “When a defendant’s challenge to a
restitution order raises an issue of law, we review that challenge de novo.” Id. at
115 (internal citation omitted); see also United States v. Vilar, 729 F.3d 62, 96 (2d
Cir. 2013); United States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006). However,
if no objection to the restitution order is raised in the district court, we review
only for plain error. Rivernider, 828 F.3d at 115. Under the plain error standard,
the defendant bears the burden to prove that “(1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the error affected
the appellant’s substantial rights, which in the ordinary case means it affected the
outcome of the district court proceedings; and (4) the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Tulsiram, 815 F.3d 114, 119–20 (2d Cir. 2016).

       Dalicandro points out that the presentence report stated that “[r]estitution
in the amount of $956,090 is owed to Omega Healthcare Investors” (the victim),
and that the court could thus ascertain the restitution amount prior to sentencing.
Dalicandro br. at 16-17. Accordingly, he argues, the court was required to enter
the restitution order at sentencing, and lacked authority under § 3664(d)(5) to do
so at a later time.


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      Dalicandro’s argument lacks merit. The judge recited at the outset of the
sentencing hearing that Dalicandro “faces a restitution order in this case, and
again, the amount being sought is $956,090.” Joint App’x at 27. But Dalicandro’s
counsel responded that further time was needed:

            I would accept the court’s gracious offer to submit a brief [on
            restitution] and request a hearing because I sat in the back and
            watched part of [Termini’s] restitution hearing and frankly I don’t
            believe that all the information that is necessary for the court to
            consider whether, consider whether, in fact, Omega is truly a victim,
            first of all, for restitution has been presented to the court and I
            would offer evidence. But I would agree with Your Honor a
            subsequent proceeding may be the appropriate vehicle to allow the
            court to at least hear my position and Mr. Dalicandro’s position.

Id. at 38. Dalicandro subsequently filed briefs arguing that Omega’s loss was less
than the amount calculated in the PSR. This colloquy reflects that the restitution
amount was not fully ascertainable ten days prior to sentencing. True, the court
eventually rejected Dalicandro’s arguments as to amount, and ended up ordering
restitution in the amount stated in the presentence report. But that does not
mean that the amount due was known ten days prior to sentencing; it means
only that the court did not accept Dalicandro’s (or Termini’s) arguments that the
proper amount of restitution was less than $956,090.

       Dalicandro’s contention that the District Court did not make clear, at the
sentencing hearing, that it would order restitution is contradicted by the record.
Judge Underhill stated: Dalicandro “faces a restitution order in this case”; “I
believe restitution is mandatory and the question is the amount of restitution”;
“And I’m going to order restitution. The amount of that restitution could be quite
significant. That will be decided soon.” Id. at 27, 37, 64. At the conclusion of the
sentencing hearing, the Court set a briefing schedule and hearing regarding
restitution. Id. at 66-68.

      Dalicandro cites the 90-day limit on imposing restitution set out in §
3664(d)(5), and argues the restitution order, issued more than five years after

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sentencing, is illegal. The authority of a sentencing court to order restitution
after the 90-day deadline was addressed in United States v. Dolan, 560 U.S. 605
(2010). Dalicandro argues that Dolan is distinguishable because the victim’s
losses in that case were not ascertainable at the time of sentencing; but
Dalicandro himself challenged the amount at the sentencing, and the court
indulged the objection.

       As noted above, if the amount of mandatory restitution due under the
MVRA is not known ten days prior to sentencing, 18 U.S.C. § 3664(d)(5)
mandates that the district court “shall set a date for the final determination of the
victim’s losses, not to exceed 90 days after sentencing.” However, under Dolan
and our own precedent, United States v. Gushlak, 728 F.3d 184 (2d Cir. 2013), a
sentencing court maintains its authority to impose restitution outside of the 90-
day window in § 3664(d)(5). The MVRA restitution order in Dolan was issued
three months after the 90-day deadline had expired. The Supreme Court held
that a sentencing court that misses the 90–day deadline nonetheless retains the
power to order restitution, at least if (as here) the sentencing court made clear
prior to the deadline’s expiration that restitution would be ordered, leaving open
(for more than 90 days) only the amount. Dolan, 560 U.S. at 611. The Supreme
Court cited six reasons for this conclusion:

      •      “[W]here, as here, a statute ‘does not specify a consequence for
             noncompliance with’ its ‘timing provisions,’ ‘federal courts will not
             in the ordinary course impose their own coercive sanction.’” Id.
             (internal citations omitted).

      •      “[T]he statute’s text places primary weight upon, and emphasizes
             the importance of, imposing restitution upon those convicted of
             certain federal crimes.” Id. at 612.

      •      “[T]he Act’s procedural provisions reinforce this substantive
             purpose, namely, that the statute seeks primarily to ensure that
             victims of a crime receive full restitution.” Id.

      •      “[T]o read the statute as depriving the sentencing court of the power
             to order restitution would harm those—the victims of crime—who

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             likely bear no responsibility for the deadline’s being missed and
             whom the statute also seeks to benefit.” Id. at 613-14.

      •      “[The Supreme Court has] previously interpreted similar statutes
             similarly.” Id. at 614.

      •      “[T]he defendant normally can mitigate any harm that a missed
             deadline might cause—at least if, as here, he obtains the relevant
             information regarding the restitution amount before the 90–day
             deadline expires. A defendant who fears the deadline will be (or just
             has been) missed can simply tell the court, which will then likely set
             a timely hearing or take other statutorily required action.” Id. at
             615-16.

See also Gushlak, 728 F.3d at 191-92 (applying Dolan and upholding an award of
restitution outside of the 90-day window). Dalicandro waited longer than the
defendants in Dolan and Gushlak; but the considerations cited in those cases
apply nevertheless in full measure.

       Dalicandro further argues that the years intervening between the
sentencing and the restitution order prejudiced him in three ways: (i) the
sentencing judge forgot the circumstances of the fraud, which led to a harsher
restitution order than would have been imposed in late 2010; (ii) his improved
financial circumstances will now force him to pay more in restitution, while
Termini’s ability to pay restitution has decreased; and (iii) the delay in restitution
left him unable to plan for his future.

       Since Dalicandro did not raise prejudice in the district court, Joint App’x at
101-2, we review his assertion of prejudice for plain error. See Rivernider, 828
F.3d at 116. None of Dalicandro’s arguments show plain error in the district
court’s decision.

       Judge Underhill had the benefit of the full record in 2016, and Dalicandro
adduces no evidence that the judge failed to ascertain the relevant circumstances
as well as he could five years prior. The court at sentencing did find Dalicandro
less culpable than Termini; but those remarks were made in the context of prison

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terms (Termini served a sentence of imprisonment while Dalicandro did not),
while the Court made clear that the amount Dalicandro may have to pay in
restitution “could be quite significant.” Joint App’x at 64.

       There is no indication that the district court even considered Dalicandro’s
or Termini’s financial circumstances when it ordered that the full restitution
amount be paid by each defendant. See Joint App’x at 112-4. Under 18 U.S.C. §
3664(h), “the court may make each defendant liable for payment of the full
amount of restitution or may apportion liability among the defendants to reflect
the level of contribution to the victim’s loss and economic circumstances of each
defendant.” Id. (emphasis added). Opting for the former, the district court did
not discuss either Dalicandro’s or Termini’s “economic circumstances” when it
made “each defendant liable for payment of the full amount,” nor was it under
any obligation to do so. Id. In any event, the five-year delay improved
Dalicandro’s ability to pay restitution. Dalicandro claims at sentencing that his
gross monthly cash salary was only $6,300, whereas now it is $8,323.47. Ten
percent of $8,323.47 is more than ten percent of $6,300, but arguably less of a
hardship.

       As to Dalicandro’s contention that he was unable to plan effectively for the
future, Dalicandro knew during the period of delay that he owed mandatory
restitution. Moreoever, the identified expenses, such as college tuition and a car
lease, are not particularly unusual or remarkable. In short, his arguments about
planning, raised for the first time on appeal, do not satisfy the plain error
standard.2



2.Dalicandro’s brief asserts in one sentence that ordering restitution five and a
half years after his initial sentencing violated due process. Dalicandro did not
argue this to the District Court, and under plain error review, Dalicandro cannot
show any prejudice caused by the delay. “Even substantial delays in sentencing
do not in all circumstances amount to a due process violation, especially when a
defendant has not requested timely sentencing and is unable to establish
prejudice of the sort implicated here.” United States v. Ray, 578 F.3d 184, 202 (2d
Cir. 2009).

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      3. Dalicandro argues that the district court abused its discretion in not
assigning a greater share of the mandatory restitution to Termini, and instead
found each defendant jointly and severally liable. The District Court laid out
each defendant’s role in the fraud and found they were both “integral to the
fraud.” Joint App’x at 114. The District Court considered Dalicandro’s role in
meeting with representatives from Omega, and in submitting false invoices to
Omega. Id. These reasons are enough to support the District Court’s
discretionary finding that both defendants are jointly and severally liable.


      Accordingly, the sentence of the district court is hereby AFFIRMED.

                                      FOR THE COURT:
                                      CATHERINE O’HAGAN WOLFE, CLERK




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